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Germino v. Marshall

October 30, 2010



Petitioner is a state prisoner proceeding pro se with an amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his amended habeas petition before this court petitioner challenges his 2004 judgment of conviction entered in the Amador County Superior Court for attempted murder in violation of California Penal Code § 187(a), assault by means of force likely to produce great bodily injury in violation of California Penal Code § 245(a)(1), kidnapping in violation of California Penal Code § 207(a), second degree robbery in violation of California Penal Code § 211, false imprisonment by violence in violation of California Penal Code § 236, aggravated mayhem in violation of California Penal Code § 205, and unlawfully driving or taking a vehicle in violation of California Vehicle Code § 10851(a).

Petitioner seeks federal habeas relief on the grounds that: (1) his private diaries were illegally seized and admitted into evidence at his trial; (2) his conviction was based solely on the illegal admission of his private diaries into evidence; (3) his "vicinage rights" were violated; (4) his trial counsel rendered ineffective assistance; (5) his right to a fair trial was violated by prosecutorial misconduct; (6) his appellate counsel rendered ineffective assistance; and (7) he was improperly sentenced.

Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.


On January 20, 2004 an Amador County Superior Court jury found petitioner guilty of attempted murder, assault, kidnapping, robbery, false imprisonment, aggravated mayhem, and vehicle theft. (Notice of Lodging Documents on April 1, 2009 (Doc. No. 14), Clerk's Transcript on Appeal (CT) at 570-77.) Additionally the jury found enhancement allegations for inflicting great bodily injury and the use of a deadly or dangerous weapon to be true. (Id. at 578-79.) Following his conviction, petitioner was sentenced on March 1, 2004, to state prison for an indeterminate term of life with the possibility of parole, plus a determinate term of 13 years. (Id. at 634-37.)

Petitioner appealed his judgment of conviction to the California Court of Appeal for the Third Appellate District. On May 26, 2006, the judgment of conviction was affirmed in a reasoned opinion. (Resp't's Lod. Doc. 4.) Petitioner then filed a petition for review with the California Supreme Court. (Resp't's Lod. Doc. 5.) On September 13, 2006, the California Supreme Court summarily denied that petition. (Resp't's Lod. Doc. 6.)

On November 21, 2007, petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (Resp't's Lod. Doc. 7.) That petition was summarily denied on May 14, 2008. (Resp't's Lod. Doc. 8.) Petitioner thereafter filed a petition for writ of habeas corpus in the Amador County Superior Court on February 9, 2007. (Resp't's Lod. Doc. 9.) The Amador County Superior Court denied that petition in reasoned opinions on June 27, 2007 and October 15, 2007.*fn1 (Resp't's Lod. Doc. 10, 13.) On October 25, 2007, petitioner filed a petition for a writ of habeas corpus in the California Court of Appeal for the Third Appellate District. (Resp't's Lod. Doc. 11.) That petition was summarily denied on November 1, 2007. (Resp't's Lod. Doc. 12.)

On December 11, 2008, petitioner filed his original petition for a writ of habeas corpus in this court. (Doc. No. 1.) Thereafter, on December 24, 2008, petitioner filed the amended petition now before the court. (Doc. No. 5. - "Am. Pet.") Respondent filed an answer on April 1, 2009. (Doc. No. 15 - "Answer.") Petitioner filed his traverse on June 22, 2009. (Doc. No. 20 - "Traverse.")


In its unpublished memorandum and opinion affirming petitioner's judgment of conviction, the California Court of Appeal for the Third Appellate District provided the following factual summary:

Defendant bludgeoned the victim with a manzanita club in the mobile home they shared in Columbia, a town located in Tuolumne County. Defendant took the keys to the mobile home, which the victim owned, and drove it to Reno, Nevada. While passing through Amador County, defendant dumped the victim's body on a turnout off Highway 49. The victim survived the attack, but suffered permanent injuries.

A jury convicted defendant of attempted willful, deliberate and premeditated murder (Pen. Code, §§ 187, subd. (a), 664, subd. (a)-subsequent undesignated statutory references are to this Code), assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), kidnapping (§ 207, subd. (a)), robbery (§ 211), false imprisonment by violence (§ 236), aggravated mayhem (§ 205), and vehicle theft (Veh. Code, § 10851, subd. (a)), as well as multiple enhancements for great bodily injury (§ 12022.7, subd. (a)) and use of a deadly or dangerous weapon (§ 12022, subd. (b)(1)). The court imposed concurrent terms of life with the possibility of parole for the attempted murder and aggravated mayhem convictions, but imposed a section 654 stay on the latter. The court imposed a concurrent upper term sentence for the section 245, subdivision (a)(1) conviction, but issued a section 654 stay of this sentence as well. Defendant's aggregate sentence consisted of an indeterminate term of life with the possibility of parole plus a determinate term of 13 years.

(Resp't's Lod. Doc. 4 at 2 (hereinafter Opinion).)


I. Standards of Review Applicable to Habeas Corpus Claims

A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).

This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Title 28 U.S.C. § 2254(d) sets forth the following standards for granting habeas corpus relief:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted 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.

See also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). See also Frantz v. Hazey, 513 F.3d 1002, 1013 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").

The court looks to the last reasoned state court decision as the basis for the state court judgment. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). When it is clear that a state court has not reached the merits of a petitioner's claim, or has denied the claim on procedural grounds, the AEDPA's deferential standard does not apply and a federal habeas court must review the claim de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).

II. Petitioner's Claims

A. Procedural Default

Respondent asserts that federal habeas review of all of petitioner's claims except his prosecutorial misconduct (claim five) and sentencing error (claim seven) are procedurally barred. (Answer at 19.*fn2 ) Respondent notes that petitioner raised his other five claims (claims one through four and six) in his February 9, 2007, state habeas petition filed with the Amador County Superior Court. Respondent argues that court denied relief citing the decision in In re Dixon, 41 Cal.2d 756, 759 (1953) and stating that petitioner should have raised these claims on appeal but failed to do so. (Id. at 21-22.) Respondent contends that the Amador County Superior Court's ruling in this regard constitutes a procedural bar which precludes this court from addressing the merits of the specified claims.

State courts may decline to review a claim based on a procedural default. Wainwright v. Sykes, 433 U.S. 72, 81-82 (1977). As a general rule, a federal habeas court "'will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.'" Calderon v. United States District Court (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)). The state rule for these purposes is only "adequate" if it is "firmly established and regularly followed." Id. (quoting Ford v. Georgia, 498 U.S. 411, 424 (1991)). See also Bennett v. Mueller, 322 F.3d 573, 583 (9th Cir. 2003) ("[t]o be deemed adequate, the state law ground for decision must be well-established and consistently applied.") The state rule must also be "independent" in that it is not "interwoven with the federal law." Park v. California, 202 F.3d 1146, 1152 (9th Cir. 2000) (quoting Michigan v. Long, 463 U.S. 1032, 1040-41 (1983)). Even if the state rule is independent and adequate, the challenged claims may be reviewed by the federal court if the petitioner can show: (1) cause for the default and actual prejudice as a result of the alleged violation of federal law; or (2) that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 749-50.

A reviewing court need not invariably resolve the question of procedural default prior to ruling on the merits of a claim where the default issue turns on difficult questions of state law. Lambrix v. Singletary, 520 U.S. 518, 524-25 (1997); see also Busby v. Dretke, 359 F.3d 708, 720 (5th Cir. 2004). Under the circumstances presented here, this court finds that petitioner's claims can be resolved more easily by addressing them on the merits. Accordingly, this court will assume that petitioner's claims are not procedurally defaulted.

B. Admission of Private Diaries

Petitioner claims that his private diaries were illegally seized "without probable cause." (Am. Pet. at 8.) In addition, petitioner argues that "extra-judicial statements" from those diaries were admitted into evidence before all the elements of the charged crimes were established and that doing so denied him "a proper recourse to cross-examine." (Id.)

The United States Supreme Court has held that "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Stone v. Powell, 428 U.S. 465, 494 (1976).

Here, petitioner argues that he did not have an opportunity for full and fair litigation of his Fourth Amendment claim because the trial judge denied defense counsel's written and oral objections to introduction of the diaries into evidence without making a "decision on the oral objections" or a "hear[ing] [on] the written objection[s]." (Traverse at 8.) First, there is no factual basis to support petitioner's bare allegations in this regard. The portions of the record that petitioner cites in support of this claim relate to his preliminary hearing, not his trial. At the preliminary examination, then-defense counsel objected to the admission of petitioner's journals into evidence on the grounds that their admission would violate petitioner's right to privacy, his constitutional right not to incriminate himself and pursuant to California Evidence Code § 352. (CT at 102-04; 170-71.) The court overruled those objections at the preliminary examination. (CT at 171.) Prior to trial, defense counsel sought to exclude from evidence only portions of petitioner's journals on relevance and Evidence Code § 352 grounds. (See generally RT 345-425). The trial court ruled on those objections, making various redactions to the journal entries in response to the defense objections. (Id.) As petitioner concedes, none of his counsel ever filed a motion to suppress the journals from admission into evidence pursuant to California Penal Code § 1538.5 even though they certainly were provided the opportunity to do so.*fn3 (Traverse at 8.) Of course, claims of erroneous evidentiary rulings under state law by the trial court cannot form an independent basis for federal habeas relief.

Moreover, even assuming arguendo that petitioner's suggestion that the state court failed to properly rule on his objections to the admission of the journals into evidence were true, his Fourth Amendment claim presented in this federal habeas petition would still be without merit. This is so because "[t]he relevant inquiry is whether petitioner had the opportunity to litigate his [Fourth Amendment] claim, not whether he did in fact do so or whether the claim was correctly decided." Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996). See also Gordon v. Duran, 895 F.2d 610, 613 (9th Cir. 1990); Locks v. Sumner, 703 F.2d 403, 408 (9th Cir. 1983), cert. denied, 464 U.S. 933 (1983).

Here, petitioner clearly had the opportunity to litigate his Fourth Amendment claim both before the trial court and on appeal. There is no evidence before this court indicating that petitioner was denied a full and fair opportunity to litigate any Fourth Amendment claim he wished to present in state court. Accordingly, this claim for relief is barred in this federal habeas proceeding. Stone, 428 U.S. at 494.

With respect to petitioner's argument that his diaries were improperly admitted into evidence at his trial, absent some federal constitutional violation, a violation of state law regarding the admissibility of evidence does not provide a basis for habeas relief. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Rhoades v. Henry, 596 F.3d 1170, 1177 n.5 (9th Cir. 2010). A state court's evidentiary ruling, even if erroneous, is grounds for federal habeas relief only if it renders the state proceedings so fundamentally unfair as to violate due process. Duncan v. Ornowski, 528 F.3d 1222, 1244 n. 10 (9th Cir. 2008); Drayden v. White, 232 F.3d 704, 710 (9th Cir. 2000); Spivey v. Rocha, 194 F.3d 971, 977-78 (9th Cir. 1999); Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991) ("the issue for us, always, is whether the state proceedings satisfied due process; the presence or absence of a state law violation is largely beside the point"). In this regard, the United States Supreme Court has admonished that the category of infractions that violate "fundamental fairness" has been defined very narrowly. Estelle, 502 U.S. at 72. See also Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (Noting that the "Supreme Court has made very few rulings regarding the admission of evidence as a violation of due process.") Thus, a habeas petitioner "bears a heavy burden in showing a due process violation based on an evidentiary decision." Boyde v. Brown, 404 F.3d 1159, 1172 (9th Cir. 2005), amended by 421 F.3d 1154 (9th Cir. 2005).

A writ of habeas corpus will be granted due to the erroneous admission of evidence "only where the 'testimony is almost entirely unreliable and . . . the factfinder and the adversary system will not be competent to uncover, recognize, and take due account of its shortcomings.'" Mancuso v. Olivarez, 292 F.3d 939, 956 (9th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S. 880, 899 (1983)). Evidence violates due process only if "there are no permissible inferences the jury may draw from the evidence." Jammal, 926 F.2d at 920. Even then, evidence must "be of such quality as necessarily prevents a fair trial." Id. (quoting Kealohapauole v. Shimoda, 800 F.2d 1463 (9th Cir. 1986)).

Here, petitioner has not met his heavy burden of showing a due process violation based on the admission of his diary entries into evidence at his trial. While he generally objects to their introduction petitioner does not claim that the statements made in his diaries were unreliable, admittedly a difficult argument as he was the author of those statements. Moreover, petitioner does not argue that there was no permissible inferences the jury could have drawn from the statements in his diaries. Even if petitioner offered such an argument it would be meritless since the statements included a precise retelling of petitioner's thoughts and actions leading up to, during and after the time of the alleged crimes, from which the jury could have drawn the reasonable inference of petitioner's guilt. (Reporter's Transcript On Appeal ("RT") at 686-94.)

Accordingly, for the reasons set forth above, petitioner is not entitled to federal habeas relief with respect to this claim.

C. Conviction Based Solely on Diaries

Petitioner asserts that the "only evidence . . . presented against petitioner was his uncorroborated extra-judicial statements" found in his "illegally seized private diaries." (Am. Pet. at 13.) Petitioner argues that there was no evidence introduced at his trial to support his conviction other than his "extra-judicial statements" found in the diaries. (Id. at 14.)

The Due Process Clause of the Fourteenth Amendment "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). There is sufficient evidence to support a conviction if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). "[T]he dispositive question under Jackson is 'whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.'" Chein v. Shumsky, 373 F.3d 978, 982 (9th Cir. 2004) (quoting Jackson, 443 U.S. at 318). "A petitioner for a federal writ of habeas corpus faces a heavy burden when challenging the sufficiency of the evidence used to obtain a state conviction on federal due process grounds." Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). In order to grant the writ, the federal habeas court must find that the decision of the state court reflected an objectively unreasonable application of Jackson and Winship to the facts of the case. Id. at 1275 & n. 13.

Portions of petitioner's diaries were read to the jury, including the following incriminating entries by petitioner*fn4

We got back to camp yesterday about 4:00. I got my hand saw and Ginger and I went up to the hillside where I cut some 12 or 14 inch lengths of manzanita specifically for selecting one to use as a club to beat this mother-fucker on the head with, should I decide to go through with my crime.

I thought today of how, because I've never hit anyone in the head before, I don't really know what to expect. I hope to knock him unconscious so I can bound him with rope. If I kill him, don't want to do it right away because I don't want to haul around a dead body until I find a place to dump it.

I will get revenge on this pig fucker yet for he betrayed my friendship, and maybe soon I think about how I might wait until after dark when he's all folded up in his cramped corner, beat him with this hard stick of manzanita, pack the truck, and leave.

I did it. I smashed his skull with a manzanita club, and took the truck, and I'm at Kruger's. He'll meet me here this evening. It's 2:10 now. It was brutal, and the meanest, coldest thing I've ever done. I'm even in a little shock. Ginger, I don't think, is sure what happened. He came in about 11:30 last night lit as high as a kite. He folded up in his corner, and I thought that was my time, but I chickened out. When he woke me up at 3:00 o'clock this morning to take a beer and booze piss, I was really mad. After he climbed in bed, I stewed. Then I got up, had a cigarette, and thought I'll nail him in his sleep. It was only light enough in here to see that he was lying close to the outside edge facing me which gave me plenty of room to swing the club as hard as I could. I stewed for several more minutes, and then just did it. I cracked him several times, and he snorted real loud, like a snore. I swung a few more times, and still he snorted continuously, so I just put my stuff in the truck that was in the shed behind us, and unhooked the power and drain hose, and drove off.

He moaned and grunted continuously. A few miles down the road he fell off the bunk with his bloody head down in the well by the door with his legs up in the air resting against the seat where I sit. I had the curtain up, and could only hear him. Everything on the table scattered, and there was blood splashed, but not everywhere.

I think it was about 4:00 when I hit him, and only a few minutes later when I left. I pulled over as soon as I could after he fell, laid out my foam pad, and laid him on it, then I drove off. There was a pool of blood in the well. He kept moaning and struggling to get up, but didn't have the strength or coordination.

It began to get light out about the time I made San Andreas. I'll drop him off somewhere so somebody might see him and call for help, I thought. I waited until this side of Dry Town, I think, and pulled him out of the truck onto the shoulder and drove off. He'd shit all over, I think, before Jackson. A few minutes before Placerville I threw the foam pad out with the shit and blood. He seemed to want to fight and struggle, so I pulled him out, and was still moaning when I drove off.

I don't know if he'll live, but if he does, I can't imagine he'll ever be the same. I guess I'm still really fucking mad that I don't feel as bad as I expect a person should feel after such a brutal attack, and probably most of my anger still burning is jealousy that he was doing so well while I was doing so poorly. But still, I justify it because of how betrayed I felt and have felt over tens and tens of incidents over many years.

In Placerville I stopped at a supermarket parking lot to clean up the blood and shit. When I came back in the truck, a load of stuff after hitting him, there was an unfamiliar and sickening odor which must have come from his skull. It seems to still be in the truck even after cleaning up as best I could. His pillow and sheets are still up there, though, and they have a lot of blood. I don't know yet how or where I will discard them so as not to draw suspicion, but I can't leave them in there long.

I stopped in Sutter Hill for gas. He was still in the truck. I got out his wallet, and only found $19 until, when in Placerville, I checked hidden pockets and found only one $100 bill. The son-of-a-bitch has blown, drank up, and pissed away hundreds and hundreds of dollars in the last month. And when I checked for pot, he smoked all whatever he had, so I'm not set very well, maybe $120. I forgot to say that all he was wearing was a T-shirt.

Boy it's hard not to think about this. It's about all I've thought about since. After I parked at Kruger's, I went ...

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