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Robert T. Lozano v. Ken Clark

January 11, 2011

ROBERT T. LOZANO, PETITIONER,
v.
KEN CLARK, RESPONDENT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

I. Introduction

Petitioner is a state prisoner proceeding without counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Both parties have consented to the jurisdiction of the undersigned.

Petitioner challenges his 2007 conviction for assault with a firearm (Cal. Penal Code § 245(a)(2)) and personal use of a gun (Cal. Penal Code § 12022.5(a)). Petitioner is serving a sentence of fourteen years.

This action is proceeding on the original petition filed January 7, 2010. Petitioner raises two claims: 1) the trial court erred in refusing to allow him to make a motion to withdraw his plea; and 2) ineffective assistance of counsel.

After carefully considering the record, the undersigned orders the petition denied.

II. Anti-Terrorism and Effective Death Penalty Act ("AEDPA")

In Williams (Terry) v. Taylor, 529 U.S. 362 (2000), the Supreme Court defined the operative review standard in a habeas corpus action brought pursuant to 28 U.S.C. § 2254. Justice O'Connor's opinion for Section II of the opinion constitutes the majority opinion of the court. There is a dichotomy between "contrary to" clearly established law as enunciated by the Supreme Court, and an "unreasonable application of" that law. Id. at 405. "Contrary to" clearly established law applies to two situations: (1) where the state court legal conclusion is opposite that of the Supreme Court on a point of law; or (2) if the state court case is materially indistinguishable from a Supreme Court case, i.e., on point factually, yet the legal result is opposite.

"Unreasonable application" of established law, on the other hand, applies to mixed questions of law and fact, that is the application of law to fact where there are no factually on point Supreme Court cases which mandate the result for the precise factual scenario at issue. Id. at 407-08. It is this prong of the AEDPA standard of review which directs deference be paid to state court decisions. While the deference is not blindly automatic, "the most important point is that an unreasonable application of federal law is different from an incorrect application of law....[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. Rather, that application must also be unreasonable." Id. at 410-11 (emphasis in original). The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Viscotti, 537 U.S. 19 (2002).

"Clearly established" law is law that has been "squarely addressed" by the United States Supreme Court. Wright v. Van Patten, 552 U.S. 120 (2008). Thus, extrapolations of settled law to unique situations will not qualify as clearly established. See e.g., Carey v. Musladin, 549 U.S. 70, 76 (2006) (established law not permitting state sponsored practices to inject bias into a criminal proceeding by compelling a defendant to wear prison clothing or by unnecessary showing of uniformed guards does not qualify as clearly established law when spectators' conduct is the alleged cause of bias injection).

The state courts need not have cited to federal authority, or even have indicated awareness of federal authority, in arriving at their decision. Early v. Packer, 537 U.S. 3 (2002). Nevertheless, the state decision cannot be rejected unless the decision itself is contrary to, or an unreasonable application of, established Supreme Court authority. Id. An unreasonable error is one in excess of even a reviewing court's perception that "clear error" has occurred. Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003). Moreover, the established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer, 537 U.S. at 9.

However, where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).

When reviewing a state court's summary denial of a claim, the court "looks through" the summary disposition to the last reasoned decision. Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir. 2000).

III. Factual Background

Petitioner plead guilty to the charges. For that reason, the undersigned sets forth the facts of the offense contained in the probation report:

SPD Report #06-171121 indicates on 5/17/2006, at approximately 1:00 p.m., officers responded to the female victim's residence regarding a reported shooting. Paramedics arrived and gave immediate assistance to the victim who had suffered a gunshot wound to her chest. She was transported to the U.C. Davis Medical Center.

The victim's sister was contacted at the scene. She stated her brother, the defendant, is a drug dealer, and a "Garden" gang member. She stated her sister (victim) is a heavy drug user, and that both the victim and defendant reside at the residence. Detectives learned that both the victim and defendant were inside the victim's bedroom with the door closed when gunfire was heard. The victim's boyfriend, who was also in the house, then entered the bedroom and found the victim shot. The victim walked towards the front door and collapsed.

The victim/defendant's mother offered information to the officers that she had previously seen the defendant with a short-barreled handgun, believing it was a .38 caliber. She had told him to remove the gun from the house immediately.

Officers made contact with the victim at the U.C. Davis Medical Center. They asked her who had shot her, and she stated she "did not know." She wanted to "drop it" and would not talk to officers further. However, when officers prepared to leave the room, she indicated she would tell officers what had happened if her brother Luis was in the room with her. Prior to Luis entering the room, the victim asked the officer, "how much time is Robert (the defendant) looking at?" Her brother entered the room and the officer asked her again who had shot her, at which point she stated it was her brother, Robert (defendant). When asked why, she stated, "It just went off" and that it was just an accident, and she did ...


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