The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS [Doc. 1]
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Following a jury trial in the Fresno County Superior Court, Petitioner was convicted of attempted murder (Cal. Penal Code*fn1 § 664/187) and assault with a firearm (§ 245(a)(2)). (CT 141-145.) The jury also found that Petitioner personally and intentionally discharged a firearm causing great bodily injury or death, within the meaning of section 12022.53(d). (CT 141-145.) Petitioner was sentenced to thirty-two years to life. (CT 157-162.)
Petitioner filed a timely notice of appeal. On October 6, 2008, the California Court of Appeal, Fifth Appellate District affirmed the judgment. (Lodged Doc. No. 3.)
Petitioner filed a petition for review in the California Supreme Court. The petition was denied on December 10, 2008. (Lodged Doc. No. 5.)
Petitioner filed the instant federal petition for writ of habeas corpus on September 15, 2009. Respondent filed an answer to the petition on December 28, 2009. (Court Doc. 16.) Petitioner did not file a traverse.
On September 18, 2006, Catarina Rodriguez was living in Fresno with her children and a friend, Nicholas Ray Padilla, whom she considered her "nephew." That evening at about 8:00 p.m., she heard a car in front of the house honking its horn, assumed it was one of her friends, and asked Padilla to go outside and instruct the friend to come inside the house. Rodriguez, who was busy braiding a daughter's hair, saw Padilla go outside, and then, without having heard any loud arguments, heard multiple gunshots. Rodriguez threw her daughter on the floor and covered the child with her body, and then heard Padilla say "I'm hurt" and "I'm hit." Rodriguez ran out, saw Padilla had been shot and then ran across the street to a pay phone to call 911.
However, before Rodriguez could even call for help, she saw a police officer arrive around the corner. Rodriguez testified that the police, within the hour, searched her house for firearms and weapons but found none. She further testified that she had never had a gun in her house and that she did not see Padilla with a gun that evening.
Fresno Police Officer Juan Gurrola was on patrol with his partner, Officer Monty Lewis, that night in the area when he heard multiple gunshots at approximately 8:00 p.m. He arrived at the Rodriguez house within two minutes of hearing the shots and was met by Rodriguez, who told him that her nephew had been shot. Gurrola found Padilla near the front porch, shot in several different parts of his body and bleeding profusely; the officer applied pressure to Padilla's shoulder wound to stop the bleeding until medical help could arrive. After helping Padilla, Gurrola obtained a preliminary statement from Padilla, which he relayed to his sergeant and to Fresno Police Detective Art Rodriguez. Gurrola also accompanied Padilla to the hospital. Later that night, Gurrola proceeded with several officers to Chavez's residence where he took Chavez into custody. The crime scene was searched and no weapons were found; however, the police did find an empty ammunition casing, a bullet fragment, and a bullet hole in the side of the residence.
Padilla testified that on the evening of September 18, 2006, he was preparing to eat dinner when he heard honking in front of the house, went outside, and approached the car making the noises. Padilla had recently made the acquaintance of a female named Angelica who was the mother of Chavez's baby. Chavez had then spoken to Padilla on the telephone a few days earlier and had threatened him because of his contact with Angelica and the pair had agreed to what Padilla believed would be a fistfight at some later date. When Padilla went outside, he saw Chavez was the driver of the car; Chavez then asked him if he "was ready." Padilla, who interpreted the comment as wanting to initiate a fistfight, indicated he needed to go into the house to put on his shoes and then went inside the residence.
When Padilla emerged from the house, he was wearing shoes and carrying a pair of gloves. As he was walking towards the car, he saw Chavez's arm emerge outside the window, saw some flashes, and then heard gunshots.
Padilla, shot multiple times, then managed to stumble back to the house in extreme pain while yelling for help. As a result of his injuries, Padilla has a steel rod in his leg and can no longer run, crawl, climb or do anything athletic.
Fresno Police Detective Art Rodriguez interviewed Padilla that night at the hospital; Padilla readily identified Chavez as his assailant. Rodriguez later interviewed Chavez at the Fresno Police Department headquarters. Chavez was informed of and then waived his constitutional rights. Initially, Chavez denied being armed and denied being involved in the shooting. As the interview progressed, however, Chavez then recanted his earlier denial and admitted shooting Padilla. However, in this version of his statement, Chavez claimed that after Padilla approached him, because he feared for his own safety, he had fired his gun several times. During this conversation, Chavez may have told Rodriguez that, in a telephone conversation prior to the incident, Padilla had threatened to shoot him. Detective Rodriguez told Chavez that he felt that Chavez was being dishonest. He lied to Chavez and told Chavez that Padilla had submitted to a gun residue test which came back negative, indicating that Padilla was not armed with a gun. After Detective Rodriguez expressed his doubts about the story, Chavez then indicated that maybe Padilla was unarmed and was possibly holding a pair of gloves in his hands. Chavez then admitted he had shot Padilla because Padilla was talking to or dating his baby's mother, which "made him angry."
Chavez did not testify and no defense witnesses were called.
(Lodged Doc. No. 3, Opinion at 3-5.)
Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375, 120 S.Ct. 1495, 1504, n.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged conviction arises out of the Tulare County Superior Court, which is located within the jurisdiction of this Court.
28 U.S.C. § 2254(a); 2241(d).
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997; Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), cert. denied, 522 U.S. 1008, 118 S.Ct. 586 (1997) (quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996), cert. denied, 520 U.S. 1107, 117 S.Ct. 1114 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997) (holding AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.
Where a petitioner files his federal habeas petition after the effective date of the Anti- Terrorism and Effective Death Penalty Act ("AEDPA"), he can prevail only if he can show ...