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Vasquez v. McDonald

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


February 1, 2010

JOSE FRED VASQUEZ, JR., PETITIONER,
v.
MIKE MCDONALD, WARDEN, HIGH DESERT STATE PRISON, RESPONDENT.

The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge

MEMORANDUM DISPOSITION

Petitioner, Jose Fred Vasquez, Jr., a state petitioner proceeding pro se, has filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. Vasquez is currently in custody of the California Department of Corrections, incarcerated at the High Desert State Prison in Susanville, California. Respondent has answered.*fn1 Vasquez has filed a traverse.*fn2

I. FACTUAL BACKGROUND

The following factual background is taken from the reasoned decision of the California Court of Appeal in this case:

A.G. had a boyfriend-and-girlfriend relationship with [Vasquez] beginning in September 2004. She claimed she ended it in January 2005 because [Vasquez] was controlling. Other witnesses testified she continued to be with [Vasquez] that spring.*fn3

[Vasquez] could not accept the breakup of the relationship and continued to follow A.G., leave threatening phone messages, and engage in several acts of violence. On March 30, 2005, A.G. ran into [Vasquez] at Long's Drugstore. He wanted to talk to her and waited outside. She ran away from him and he followed her in his car. She had to jump into the bushes to avoid being hit. A.G. ran to the office of the apartment manager. [Vasquez] followed; he was angry and yelling and had to be restrained. [Vasquez] was so angry he broke the sunroof on his car.

A.G. moved in with her son. [Vasquez] continued to call and would wait in front for her. Concerned for the safety of her son's family, A.G. moved again. She moved in with a friend, Jack Lowas.

On September 28, there was an incident where [Vasquez] came over and threw a sewer grate at the fence. A.G.'s father called the police and let them listen to the threatening messages [Vasquez] had left on his phone.

Another time [Vasquez] followed A.G. while she was driving Jack's truck. At a stop light, [Vasquez] got out, broke the window on Jack's truck and told A.G. that Jack's blood was on her hands. When she got home, Jack was injured and on the ground. He was bedridden for three weeks.

In early October, [Vasquez] went to Jack's home and called A.G. out. He told her he would kill her if she did not leave with him. She kicked him in the groin and got away. [Vasquez] then broke seven windows in the house. A.G. went to the police that evening and played some of the threatening messages from [Vasquez].

On October 13, A.G. was at Jack's home with some other women. [Vasquez] called, angry. Another woman took the phone and argued with [Vasquez]. [Vasquez] came over and continued to argue with that woman, saying he would blow up the house. They then saw a fire on the side of the house and [Vasquez] sped off. When the police arrived, there was the smell of gas in the air and burnt grass. The police found remnants of a Molotov cocktail at the scene and a gas can in [Vasquez's] car.

The prosecution also offered evidence of [Vasquez's] prior acts of domestic violence. R.M. testified she lived with defendant from May until August 1996, when she moved back home. When she returned to pick up her clothes, [Vasquez] choked her. He came over to her parent's home, claiming they had dinner plans. R.M. went outside to talk to [Vasquez]; she told him she did not love him anymore. [Vasquez] said she was wrong. He told her not to call anyone in the house because he had a gun. The next thing she knew, she was by the flower bed. [Vasquez] had hit her, leaving a scar from her elbow to her wrist. Her father, E.S., came out and [Vasquez] hit him. E.S. lost consciousness and later had surgery for his eye socket and jaw.

The parties stipulated that [Vasquez] was convicted of the offenses against R.M. and her father.*fn4

II. BACKGROUND/ PRIOR PROCEEDINGS

On June 15, 2006, the district attorney filed second amended information number 05F09063, charging Vasquez with, in counts one and four, stalking (Cal. Penal Code, § 646.9(a)2); in count two, assault with a deadly weapon (Cal. Penal Code, § 245(a)(1)); in count three, battery on a person with whom defendant has a dating relationship (Cal. Penal Code, § 243(e)(1)); in counts five through eight, making criminal threats (Cal. Penal Code, § 422); in count nine, vandalism (Cal. Penal Code, § 594(a)); in count ten, attempted kidnapping (Cal. Penal Code, §§ 664/207(a)); in count eleven, possession of an explosive device (Cal. Penal Code, § 12303.3); and in count twelve, arson (Cal. Penal Code, § 451(d)).*fn5 As to count four, the information alleged that a temporary restraining order was in effect that prohibited the charged conduct.*fn6 The information also alleged that Vasquez had suffered a prior serious felony conviction (Cal. Penal Code, §§ 1170.12 and 667(a)-(i)), and he had served a prior prison term (Cal. Penal Code, § 667.5(b)).*fn7

On June 20, 2006, a jury found Vasquez not guilty on counts one, three and ten, and guilty on the remaining counts.*fn8 As to count four, the jury found the temporary restraining order allegation to be true.*fn9 On July 14, 2006, the court found the prior serious felony conviction and prior prison term allegations to be true.*fn10 The court subsequently sentenced Vasquez to twenty-eight years and four months in prison.

On October 12, 2007, the California Court of Appeal affirmed the judgment in a reasoned decision.*fn11

On November 21, 2007, Vasquez filed a Petition for Review in the California Supreme Court, which the court denied on January 3, 2008.*fn12

On February 2, 2009, Vasquez timely filed a Petition for Writ of Habeas Corpus in this Court. Vasquez raises two claims for relief: 1) that the trial court improperly admitted evidence against him, and; 2) that his trial counsel was ineffective.

Respondent concedes that Vasquez has properly exhausted his claims in state court. Respondent raises no affirmative defenses.

III. STANDARD OF REVIEW

Because Vasquez filed his petition after April 24, 1996, it is governed by the standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d). Consequently, this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn13 The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn14 The holding must also be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts.*fn15 Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn16 When a claim falls under the "unreasonable application" prong, a state court's application of Supreme Court precedent must be objectively unreasonable, not just incorrect or erroneous.*fn17 The Supreme Court has made clear that the objectively unreasonable standard is a substantially higher threshold than simply believing the state court determination was incorrect.*fn18 In a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state court criminal trial is whether the error had a substantial and injurious effect or influence in determining the jury's verdict.*fn19

In applying this standard, this Court reviews the last reasoned decision by the state court,*fn20 which in this case was that of the California Court of Appeal. Under AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.*fn21

When there is no reasoned state court decision denying an issue presented to the state court and raised in a federal habeas petition, this Court must assume that the state court decided all the issues presented to it and perform an independent review of the record to ascertain whether the state court decision was objectively unreasonable.*fn22 The scope of this review is for clear error of the state court ruling on the petition:

[A]lthough we cannot undertake our review by analyzing the basis for the state court's decision, we can view it through the "objectively reasonable" lens ground by Williams . . . . Federal habeas review is not de novo when the state court does not supply reasoning for its decision, but an independent review of the record is required to determine whether the state court clearly erred in its application of controlling federal law. Only by that examination may we determine whether the state court's decision was objectively reasonable.*fn23 "[A]lthough we independently review the record, we still defer to the state court's ultimate decision."*fn24

IV. DISCUSSION

In his petition to this Court, Vasquez raises two grounds for relief. In his first ground, Vasquez claims the trial court erred by admitting evidence of injuries that he inflicted on E.S. In his second ground, Vasquez claims his trial counsel was ineffective for failing to object to testimony concerning the uncharged assaults on Jack Lowas and E.S. According to Vasquez, the testimony was not admissible and, therefore, his counsel was ineffective for failing to object to it.

GROUND I

Vasquez alleges the trial court erred by admitting evidence of the injuries he inflicted on E.S. during the August 1996 altercation where Vasquez assaulted R.M. and E.S. The trial court allowed this evidence pursuant to California Evidence Code § 1109, which operates as an exception to the California Evidence Code ban on character evidence.*fn25 Under California Evidence Code § 1109, in a criminal action involving domestic violence, evidence of defendant's commission of other domestic violence may be admitted.*fn26 Vasquez acknowledges that any crime he committed against R.M. was admissible under § 1109; however, he contends that any injuries inflicted on E.S. did not qualify as "domestic violence," and were inadmissible under § 1109. As noted above, Vasquez must show that the state court decision to admit the evidence of his attack on E.S. was contrary to, or involved an unreasonable application of a Supreme Court holding.*fn27 Additionally, the holding cited must also be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts.*fn28

The Supreme Court explicitly declined to rule on whether the admission of evidence of prior crimes violates the constitution.*fn29 Therefore, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law'" as determined by the Supreme Court.*fn30

To the extent that Vasquez's petition claims that the trial court and appellate court misapplied state law,*fn31 this issue is beyond the purview of this Court in a federal habeas proceeding. It is a fundamental precept of dual federalism that the States possess primary authority for defining and enforcing the criminal law.*fn32 A fundamental principle of our federal system is "that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus."*fn33

In order to show that the state courts violated his constitutional rights by misapplying state law, Vasquez would have to demonstrate that "the action complained of . . . violate[d] those 'fundamental conceptions of justice which lie at the base of our civil and political institutions.'"*fn34

In applying this general principle, Ninth Circuit precedents as well as the precedents of several sister circuits have concluded that it could apply to the introduction of propensity evidence.*fn35

Nevertheless, the precedents of federal appellate courts are irrelevant after ADEPA.*fn36 "[T]he Supreme Court has explicitly reserved consideration of the issue at hand in Estelle.*fn37 Thus, this Court is barred from determining whether the improper introduction of propensity evidence could rise to the level of a due process violation.*fn38 Vasquez's first claim is without merit.

GROUND II

Vasquez claims that his trial counsel was ineffective for failing to object to evidence of the uncharged assaults on E.S. and Jack Lowas. Vasquez raised this claim in his direct appeal to the California Court of Appeal, which denied it in a reasoned decision.*fn39

Under Strickland,*fn40 to demonstrate ineffective assistance of counsel, Vasquez must show both that his counsel's performance was deficient and that the deficient performance prejudiced his defense.*fn41 A deficient performance is one in which counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment.*fn42 Vasquez must show that defense counsel's representation was not within the range of competence demanded of attorneys in criminal cases, and that there is a reasonable probability that, but for counsel's ineffectiveness, the result would have been different.*fn43

Strickland and its progeny do not mandate this court act as a "Monday morning quarterback" in reviewing tactical decisions.*fn44 Indeed, the Supreme Court admonished in Strickland:

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.*fn45

In reviewing ineffective assistance of counsel claims in a federal habeas proceeding:

The question "is not whether a federal court believes the state court's determination" under the Strickland standard "was incorrect but whether that determination was unreasonable- a substantially higher threshold." Schriro, supra, at 473, 127 S.Ct. 1933. And, because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard. See Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004) ("[E]valuating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations").*fn46

It is through this doubly deferential lens that a federal habeas court reviews Strickland claims under the § 2254(d)(1) standard.*fn47 Vasquez has not met this heavy burden.

ASSAULT ON E.S.

The Court of Appeal held that the assault on E.S. was part of the domestic violence Vasquez committed against R.M. because "it placed R.M. 'in reasonable apprehension of imminent serious bodily injury' to herself and another, her father."*fn48 Accordingly, the Court of Appeal held that the evidence of Vasquez's assault on E.S. was properly admitted under § 1109 and Vasquez's counsel was not ineffective for failing to raise a meritless objection.*fn49 Thus, Vasquez does not meet the second prong of Strickland because he is unable to show his trial counsel's failure to object to evidence of the assault on E.S. prejudiced him.

ASSAULT ON JACK LOWAS

The California Court of Appeal held that the assault on Jack Lowas was part of the domestic violence Vasquez committed against A.G. because it placed A.G. "in reasonable apprehension of imminent serious bodily injury to himself or herself, or another."*fn50 The court then noted that A.G.'s testimony regarding the assault on Lowas was "probative to show defendant tried to control and intimidate A.G. through acts of violence and that his threats reasonably caused her to fear for her safety, an element of the charges of making criminal threats."*fn51 Accordingly, the Court of Appeal held that the evidence of Vasquez's assault on Lowas was properly admitted under § 1109 and Vasquez's counsel was not ineffective for failing to raise a meritless objection.*fn52 Thus, Vasquez does not meet the second prong of Strickland because he is unable to show his trial counsel's failure to object to evidence of the assault on Lowas prejudiced him.

This Court cannot say that the decision of the California Court of Appeal was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn53 Nor, viewing the matter through the doubly-deferential lens of Mirzayance, can this Court find that the state court unreasonably applied the correct legal principle to the facts of the Vasquez's case within the scope of Andrade--Williams--Schriro; i.e., the state court decision was more than incorrect or erroneous, its application of clearly established law was objectively unreasonable. Vasquez's second claim for relief is without merit.

V. CONCLUSION and ORDER

Vasquez is not entitled to relief under any ground raised in the Petition. Accordingly, IT IS HEREBY ORDERED THAT the Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus is DENIED.

IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of Appealability.*fn54 Any further request for a Certificate of Appealability must be addressed to the Court of Appeals.*fn55

The Clerk of the Court to enter judgment accordingly.


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