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Rodriguez v. Marshal

April 20, 2010


The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court


On March 27, 2008, Javier Espinoza Rodriguez ("Petitioner"), a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus ("Petition") in the District Court for the Central District of California pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) Petitioner challenges his convictions alleging constitutionally ineffective trial counsel, insufficient evidence, and violations of due process. (Id.) On June 3, 2008, the Central District transferred the case to the Southern District of California. (Doc. No. 1.)

On September 3, 2008, John C. Marshall ("Respondent") filed a motion to dismiss. (Doc. No. 8.) On June 4, 2009 the Court denied Respondent's motion to dismiss. (Doc. No. 14.) On September 10, 2009, Respondent filed his answer to Petition. (Doc. No. 21.) On December 31, 2009, Petitioner filed a traverse to Petition. (Doc. No. 28.)

For the reasons below, the Court DENIES Petitioner's Petition.


I. Procedural History

On August 15, 2003, a jury convicted Petitioner of burglary, attempting to dissuade a witness from reporting a crime, having a concealed firearm in a vehicle while being an active participant of a criminal street gang, and carrying a loaded firearm while being an active participant of a criminal street gang. (Lodg. 1.) The jury also found that Petitioner personally used the firearm. Due to a prior strike conviction, Petitioner was sentenced to fourteen years and four months in state prison. (Lodg. 1.) The California Court of Appeal and California Supreme Court affirmed the conviction. (Lodgs. 6, 8.)

On July 11, 2006, Petitioner filed a petition for writ of habeas corpus in the San Diego Superior Court. (Lodg. 9.) On August 10, 2006, the Superior Court denied the petition. (Lodg. 10.) On October 29, 2006, Petitioner filed his petition with the California Court of Appeal. (Lodg. 11.) On March 8, 2007, the Court of Appeal denied the petition. (Lodg. 12.) On June 10, 2007, Petitioner filed his petition for habeas relief with the California Supreme Court (Lodg. 13). On December 12, 2007, the state supreme court denied the petition. (Lodg. 15.)

On March 27, 2008, Petitioner filed this Petition for writ of habeas corpus in the United States District Court for the Central District of California. On June 3, 2008, the Central District transferred the case to the Southern District of California. (Doc. No. 1.) On June 11, 2008, the Court dismissed the Petition without prejudice for failure to pay the $5.00 filing fee or provide adequate documentation of Petitioner's inability to pay the filing fee. (Doc. No. 3.) The case was reopened on July 2, 2008 when Petitioner paid the fee. (Doc. No. 4.)

II. Factual Background

Federal habeas courts presume the correctness of a state court's determination of factual issues unless Petitioner "rebut[s] the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1) (2006); see Pollard v. Galaza, 290 F.3d 1030, 1035 (9th Cir. 2002). The parties do not challenge the accuracy of the California Court of Appeal's summary of the underlying facts adduced at trial. The state appellate court summarized the underlying facts as follows:

At about 2:00 a.m. on May 11, 2003, Laura Limon, her husband Martin Hererra, their son, and Martin's brother, Angel Herrera, were returning home to Angel's Chula Vista apartment after visiting family in Mexico. When they drove into the parking lot of the apartment complex, Limon and the Herreras noticed a small, dark-colored Ford Explorer with its driver's door open and light on. Limon exited their car and saw a bald, Hispanic individual in a white shirt crouch down to hide in front of Angel Herrera's truck. Hearing noises, Martin and Angel also noticed the man ducking near the truck's grill. Martin identified the man at trial as Rodriguez's co-defendant, Jose Luis Leon.

Angel walked over to his truck and confronted Leon, asking what he was doing. Leon mumbled something but paid no attention to Angel. Angel turned around and said to his brother, "You know what? Just go inside, call the cops. Let them do the work." At her husband's instruction, Limon took her son inside the apartment and called police. Martin Hererra followed his wife to the apartment, but turned and saw Leon break the window of a nearby Volkswagen Jetta. Angel had gone to an upstairs apartment to notify the Jetta's owner that someone was breaking into her car and was returning downstairs when Martin yelled out, "I'm going to call the police. You guys better leave." Both Angel and Martin then heard a gunshot and saw Rodriguez with his hand raised up in the air. Martin and his wife went inside the apartment and closed the door.

Officer Joseph Picone of the Chula Vista Police

Department responded to a radio call about the vehicle burglary. Eventually he and other officers detained Leon and Rodriguez, who were found driving away in Rodriguez's green Ford Explorer. Officers retrieved a loaded .22-caliber handgun from Leon's waistband and .22-caliber ammunition from his pockets. They found a spent casing and additional rounds of ammunition in Rodriguez's vehicle. They also found other items, including a gas card and employee badge, later confirmed to have been taken from the Jetta. Officer Picone measured the distance from Angel Hererra's apartment to the parking lot area to be approximately 173 feet.

At trial, the prosecution presented Peter Martinez, an investigator from the San Diego District Attorneys Office, to testify about the gang-related nature of the charged offenses. Martinez explained the background of the San Ysidro-area "Sidro" gang and its culture. He testified that he was aware the primary criminal activities of the Sidro gang included assaults, extortion, burglary, involvement with narcotics, grand theft involving automobiles, and robberies. Based on his review of certified records, he also related several criminal convictions by other Sidro gang members in September 2001 and September 2002. Martinez further testified, based on a certified record, that Rodriguez was convicted of residential burglary on April 22, 1999. According to Martinez, Rodriguez was a documented member and active participant in the Sidro gang based on over 30 field interviews that had been conducted by law enforcement officers. Those interviews showed Rodriguez had admitted being a Sidro gang member to officers on 23 occasions, had at times claimed a gang moniker, had been routinely contacted in areas known for Sidro gang activity and had been contacted in the company of other gang members on five occasions. Martinez also pointed out Rodriguez was wearing gang colors at the time of the offenses, and had three gang-related tattoos: three dots on his left hand, the word "Sidro" on the back of his neck, and the numbers "1925" on both his right arm and stomach area signifying the Sidro gang sign letters "S" and "Y" for San Ysidro. Martinez opined that the Rodriguez and Leon, who were documented gang members, committed the charged crimes for the benefit of the gang. In rebuttal, Martinez observed that the apartment complex where the offenses occurred was within the territory of the "Otay" gang, a Sidro rival.

A. Defense

Rodriguez testified in his own behalf at trial. He admitted joining the Sidro gang when he was eleven or twelve years old, but stated that after his last prison sentence was over in 1999 he had tired of the gang lifestyle and left San Ysidro. At the time of the offenses, he was attending drug classes twice a week. Rodriguez testified that on the evening in question he met up with Leon to drink, and also took a "date rape" drug that caused memory loss. He and Leon drove around and stopped in the parking lot so Rodriguez could urinate. He could not recall why he grabbed his gun from the back of his vehicle and fired it, other than he was "trying to show off." According to Rodriguez, Leon was not, and had never been, a member of Sidro "as far as he knew," but Leon's older brother, with whom Rodriguez used to hang out, was a member. (Lodg. 6 at 3-5.)


Petitioner seeks relief under 28 U.S.C. § 2254(d)(1) alleging the state court's decision was contrary to, or an unreasonable application of federal law. (Doc. No. 1 at 25-57.) Petitioner states thirteen claims including due process, equal protection, and ineffective assistance of counsel under the Fifth, Sixth, and Fourteenth Amendments. (Id. at 25-27.)

I. Scope of Review and Applicable Legal Standard

A. 28 U.S.C. § 2254(d)

A federal court will not grant habeas relief with respect to any claim adjudicated on the merits in state court unless the state court's decision was either (1) contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d); Early v. Packer, 537 U.S. 3, 7-8 (2002); Mendez v. Knowles, 556 F.3d 757, 767 (9th Cir. 2009).

A federal court may grant habeas relief where the state court (1) decides a case "contrary to" federal law by applying a rule different from the governing law set forth in Supreme Court cases; or (2) decides a case differently than the Supreme Court on a set of materially indistinguishable facts. Bell v. Cone, 535 U.S. 685, 694 (2002). A federal court may also grant habeas relief where a state court's decision is an "unreasonable application" of federal law, such as where the state court correctly identifies the governing legal principle from Supreme Court decisions but unreasonably applies the principle to the facts at issue. Id. "Unreasonable application" must be objectively unreasonable to the extent that the state court decision is more than merely incorrect or erroneous. See Lockyer v. Andrade, 538 U.S. 63, 75 (2003).

Federal habeas courts look to the state court's last reasoned decision to decide whether the state court's decision was contrary to or an unreasonable application of federal law. See Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). Here, Petitioner raised his first ten claims in his state habeas petitions, but both the state superior court and the state appellate court rejected the claims because the claims had been raised and rejected on direct appeal. (Lodgs. 10, 12, 15.) For these claims, the Court looks to California Court of Appeal's decision on direct appeal as the last reasoned decision. See Avila, 297 F.3d at 918.

B. Ineffective Assistance of Counsel

Petitioner claims ineffective assistance of counsel in eight of his thirteen claims. To state a claim for ineffective assistance of counsel, Petitioner must demonstrate (1) trial counsel's performance fell below an objective standard of reasonableness, and (2) trial counsel's deficient performance prejudiced Petitioner. See Yarborough v. Gentry, 540 U.S. 1, 5 (2003); Strickland v. Washington, 466 U.S. 668, 687 (1984). To show deficient performance, Petitioner must demonstrate that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. In assessing counsel's performance, the court employs a strong presumption that counsel rendered adequate assistance and exercised reasonable professional judgment. See Yarborough, 540 U.S. at 5; Strickland, 466 U.S. at 690. The court's review of counsel's performance is "doubly deferential when it is conducted through the lens of federal habeas." Yarborough, 540 U.S. at 5. The court considers the prejudice inquiry in light of the strength of the prosecution's case. Luna v. Cambra, 306 F. 3d 954, 966 (9th Cir.), amended, 311 F.3d 928 (9th Cir. 2002).

II. Trial Court's Failure to Replace a Juror

Petitioner contends that the trial court denied him his right to due process when it failed to replace a juror. (Doc. Nos. 1 at 28-30, 28-1 at 23-26.) The California Court of Appeal rejected Petitioner's contention after reviewing the entire record. This Court concludes that its decision was reasonable. (Lodg. 6.)

Before the afternoon session on the first day of testimony, Juror No. 7 sent a note to the court expressing concern that she might have seen the defendants from somewhere and asked if she could possibly be excused. (Doc. 1-3 at 49.) After reading the note to counsel, the court let Juror No. 7 explain, and carefully questioned her. (RT 157-161.)

After careful question by the court and counsel, Petitioner's counsel and his co-defendant's counsel moved that Juror No. 7 be removed. (RT 162.) The prosecutor submitted the matter to the court, and the court denied the request to remove Juror No. 7. (RT 162.) The trial court stated that it believed the juror was just being careful and that it was clear from the questions that she would be able to listen the evidence and make her decision based on the evidence and the laws instructed. (RT 162.)

The Sixth Amendment guarantees criminal defendants the right to be tried "by a panel of impartial, 'indifferent' jurors." Morgan v. Illinois, 504 U.S. 719 (1992). However, due process does not require a new trial every time a juror has been placed in a potentially compromising situation. Smith v. Phillips, 455 U.S. 209, 217 (1982). If a juror requests a discharge and shows good cause, the court may order the juror discharged. Cal. Penal Code § 1089. Where juror misconduct or bias is credibly alleged, the trial judge may investigate to determine if the alleged bias is unfounded. See Dyer v. Calderon, 151 F.3d 970, 978 (9th Cir 1998). The trial court has ...

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