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Pineda v. Harrington

August 6, 2010


The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge


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, Petitioner was convicted of carjacking (Cal. Pen. Code*fn2 § 215(a), count 1), robbery (§ 211, count 2), assault with a firearm (§ 245(a)(2), count 3), and unlawful taking of a vehicle (Cal. Veh. Code § 10851(a), count 4). With respect to counts 1, 2, and 4, the jury found true allegations that Petitioner personally used a firearm, in the commission of the crimes (§§ 12022.53(b), 12022.5(a)). As to all counts, the jury found true the allegation that Petitioner committed the crimes for the benefit of, at the direction of, or in association with a criminal street gang. (§ 186.22(b)(1)). In a bifurcated proceeding, the trial court found Petitioner had one prior "strike" conviction (§§ 667(b)-(I), 1170.12(a)-(d)). Petitioner was sentenced to 30 years imprisonment.

The California Court of Appeal affirmed the judgment, and the California Supreme Court denied review. The United States Supreme Court also denied certiorari.

While his petition for review was pending in the California Supreme Court, Petitioner filed a petition for writ of habeas corpus in the California Superior Court. The superior court denied the petition. Petitioner then filed a habeas corpus petition in the California Court of Appeal. The appellate court summarily denied the habeas petition. Petitioner also filed a habeas petition in the California Supreme Court, which was summarily denied.

Petitioner filed the instant federal petition for writ of habeas corpus on March 1, 2010. Respondent filed an answer to the petition on May 26, 2010. On June 14, 2010, Petitioner filed a motion for discovery. On July 29, 2010, Petitioner filed a traverse.


On September 26, 2006, Stephen Bistrow drove to work in Visalia. He arrived around 5:00 a.m., parked his 1997 Lincoln Town Car in front of the gate to his business, and got out of the car to open the gate. The sun was just beginning to come up and it was still a little dark. There was some extra light from neighboring businesses and street lights. As Bistrow was opening the gate, an early-model Cadillac pulled up behind his car and three men jumped out. Two of the men were carrying guns.

Bistrow was approached by one of the men, who he later identified as [Petitioner]. [Petitioner] was carrying an automatic pistol and wearing a hooded sweatshirt. [Petitioner] had the hood up on his head but nothing was obstructing his face. [Petitioner] stood approximately three feet from Bistrow and pointed the gun at the center of Bistrow's forehead. [Petitioner] was holding the gun in his left hand. The other man with a gun stood next to Bistrow's open car door. This man also pointed his gun at Bistrow, shouted profanities, and demanded the keys to Bistrow's car.

Bistrow gave [Petitioner] his car keys. [Petitioner] used his right hand to grab Bistrow's cell phone out of his pocket. [Petitioner] then got into the passenger's side of Bistrow's car, and the other man with a gun got into the driver's side. The third man got back into the Cadillac and sped away. Bistrow's car followed. Bistrow estimated the entire incident lasted two to three minutes.

Bistrow testified on cross-examination that when he first saw [Petitioner's] gun, he though he was "going to die" and was "extremely scared." As to other thoughts going through his mind, Bistrow testified, "I just wanted to make sure I got a good look at the guy who was putting the gun in my face in case he didn't kill me so I can identify him." Bistrow confirmed he was able to get a good look at both the gun and the individual pointing it at him.

On September 30, 2006, around 1:30 a.m., a police officer on patrol in Tulare observed Bistrow's car. Noticing the car had no rear license plate, the officer attempted to make a traffic stop. A chase ensued. It began as a low-speed chase but increased in speed as other officers joined the pursuit. The car eventually crashed. The five occupants, including [Petitioner], fled on foot but were shortly apprehended by the police.

A couple weeks after his car was taken, police contacted Bistrow. He went to an impound lot in Visalia to identify his car. Bistrow observed the car was altered. His handicap license plate was missing, a number of items were stripped from the interior of the car, and there were stains on the carpet. Bistrow also identified [Petitioner] in a photographic lineup as the assailant that took his car keys and cell phone at gunpoint.

During a police interview following his arrest, [Petitioner] waived his Miranda rights and claimed he did not know how he came to be in Bistrow's car on the night of September 30, 2006. [Petitioner] agreed with the detective interviewing him that he had a "memory lapse."

Gang Evidence

Visalia Police Officer Luma Fahoum testified as an expert witness regarding the Loco Park criminal street gang in Visalia. Office Fahoum was personally familiar with [Petitioner], whose street name was "Silly," and identified him as a member of the Loco Park gang. She was also personally familiar with the other four men that fled from Bistrow's vehicle on September 30, 2006, and identified them as Loco Park gang members.

Officer Fahoum opined that the crimes under the circumstances here would be committed to benefit a criminal street gang. She explained that the use of guns "makes them a more feared gang" and is "a good way of providing fear and intimidation." It also benefits the gang "to have a vehicle to commit further crimes that's not registered to them" and "not be identified by law enforcement should someone get the license plate or vehicle description."

Officer Fahoum further testified that "the vicious act of putting a gun to somebody's head and ordering property benefits the individual gang member who commits the crime whether they say they're a gang member or not at the time of the crime." She explained: "Information is passed along. Other gang members know they have put in this work. It's read in the newspapers, and oftentimes they have to answer to it in court like we are today. They have to go to jail custody for it where they can boast and brag about their actions, their work they put in. It benefits the individual's status. It helps promote their status in the gang. [¶] Like we said in the beginning, they start at a low level and advance and escalate in this gang. This is one good way to do that."

The Defense

[Petitioner's] girlfriend and her mother testified that at 5:30 a.m. on September 26, 2006, [Petitioner] was at home asleep in bed.

Dr. Robert Shomer testified as an expert in the area of eyewitness identification, perception, and memory in stressful situations. Dr. Shomer testified that identification of strangers was unreliable, and that hats or objects that obscure "the head or hairline or head shape [have] a massive [adverse] effect on accuracy." Dr. Shomer further testified that a person in a stressful situation was less likely to make an accurate identification and research consistently showed that accuracy rates were "far lower when a weapon [was] present."


A. Jurisdiction

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.

B. Standard of Review

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 that the state court's adjudication of his 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). A state court decision is "contrary to" federal law if it "applies a rule that contradicts governing law set forth in [Supreme Court] cases" or "confronts a set of facts that are materially indistinguishable from" a Supreme Court case, yet reaches a different result." Brown v. Payton, 544 U.S. 133, 141 (2005) citing Williams (Terry) v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision will involve an "unreasonable application of" federal law only if it is "objectively unreasonable." Id., quoting Williams, 529 U.S. at 409-10; Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (per curiam). "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." Lockyer, at 1175 (citations omitted). "Rather, that application must be objectively unreasonable." Id.(citations omitted).

"Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state court proceedings, § 2254(d)(2)." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Both subsections (d)(2) and (e)(1) of § 2254 apply to findings of historical or pure fact, not mixed questions of fact and law. SeeLambert v. Blodgett, 393 F.3d 943, 976-77 (2004).

Courts further review the last reasoned state court opinion. SeeYlst v. Nunnemaker, 501 U.S. 979, 803 (1991). However, where the state court decided an issue on the merits but provided no reasoned decision, courts conduct "an independent review of the record . . . to determine whether the state court [was objectively unreasonable] in its application of controlling federal law." Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). "[A]lthough we independently review the ...

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