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Barragan v. Hedgpeth

April 12, 2011

VICTOR BARRAGAN, PETITIONER,
v.
HEDGPETH, WARDEN, RESPONDENT.



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

FINDINGS AND RECOMMENDATIONS

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. Petitioner challenges his 2005 conviction for: (1) murder with the special circumstances of felony murder/attempted robbery and felony murder/attempted burglary (Cal. Penal Code §§ 187, 190.2(a)(17)(A) and (G)), with an enhancement for the intentional discharge of a firearm (Cal. Penal Code § 12022.53(d) and (e)(1)); (2) burglary with personal use of a firearm (Cal. Penal Code §§ 459, 12022.5(a)); (3) attempted home invasion robbery with enhancements for the intentional discharge of a firearm and committing the crime for the benefit of a criminal street gang (Cal. Penal Code §§ 664/211, 12022.53(d) and (e)(1), 186.22(b)(1)); and 4) being a felon in possession of a firearm (Cal. Penal Code § 12021(a)).

Petitioner is serving a sentence of life without the possibility of parole for murder with special circumstances, plus 25 years to life for the firearm discharge enhancement, plus 10 years for the criminal street gang enhancement, all consecutive to a three year determinate term for being a felon in possession of a firearm.

This action is proceeding on the original petition filed September 16, 2009. Petitioner raises four claims: 1) violation of right to self-representation; 2) violation of the Confrontation Clause; 3) improper admission of prior crimes; and 4) jury instruction error. After carefully reviewing the record, the undersigned recommends that the petition be denied.

II. Standards for a Writ of Habeas Corpus

An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). 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).

Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's 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.

28 U.S.C. § 2254(d).

Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents if it applies a rule that contradicts the governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at different result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).

Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. 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 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (internal citations omitted) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'"). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 131 S. Ct. 770, 786 (2011).

The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). If there is no reasoned decision, "and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington, 131 S. Ct. at 784-85 (2011). That presumption may be overcome by a showing that "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)).

Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, the federal court conducts an independent review of the record. "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). Where no reasoned decision is available, the habeas petitioner has the burden of "showing there was no reasonable basis for the state court to deny relief. Harrington, 131 S. Ct. at 784. "[A] habeas court must determine what arguments or theories supported or, . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court. Id. at 786.

The California Court of Appeal was the last state court to issue a reasoned decision addressing petitioner's claims.

III. Factual Background

The opinion of the California Court of Appeal contains a factual summary. After independently reviewing the record, the undersigned finds this summary to be accurate and adopts it herein.

FACTUAL AND PROCEDURAL BACKGROUND

A. Robberies Near Modesto-October 2002:

On October 27 and 28, 2002, two men robbed a Motel 6 in Modesto, a Stop 'N Save convenience store in Modesto, a Quik Stop convenience store in Ripon, and a Denny's restaurant in Lathrop. The robbers were dressed in dark clothing, ski masks and gloves. One robber had a gun. The victims were unable to identify the two men who robbed them.

B. Discovery Of Daniel MacDougall's Body-November 5, 2002:

Fourteen-year-old Daniel MacDougall lived with his parents Kerry and Elizabeth MacDougall in Tracy. Kerry MacDougall worked nights. He suffered from a partial hearing loss and was a heavy sleeper. Kerry did not hear Elizabeth leave for work before dawn on the morning of November 5, 2002.

Daniel usually left for school around 6:30 or 7:00 a.m., turning off the house alarm and locking the front door with his key. He telephoned his friend V.M. at 6:22 a.m. on November 5, 2002, but did not show up to walk to school with her as planned. V.M. tried unsuccessfully to reach Daniel by phone between 7:00 and 7:30 that morning.

Manuel Reyes, who lived in the neighborhood, drove past the entrance to the MacDougall's street at 6:30 a.m. on November 5, 2002. He noticed that the front door of the MacDougall house was standing open. Reyes saw two young men walking toward the door. The first man was about 5 feet 10 inches tall. The second man's face was red, as if he had been running, but he had a lighter Hispanic complexion than the first man. Both wore dark, baggy clothing and head coverings.

Kerry discovered Daniel's body in a large pool of blood in the front entry hallway when he came downstairs around 9:00 a.m. Daniel was dressed for school and held the front door key in his hand. Kerry called 911 and waited for the police to arrive.

The initial police investigation revealed that Daniel had died an hour or more before Kerry discovered the body. Nothing in the rest of the house was disturbed or bloodstained. However, the front door was damaged and investigators found a shoe impression near the door handle.

The MacDougalls, who were ex-Marines, had a gun collection which they kept in a large gun safe in the garage and a smaller safe in the master bedroom. The only fingerprints on the gun safe were Kerry's. None of the MacDougall weapons fired the fatal shot.

The autopsy revealed that the cause of death was a massive head wound from a .38 or .357-magnum round-jacketed hollow bullet. Investigators found no weapon at the scene. Daniel was shot at close range. The bullet lodged behind his left jawbone.

Tracy police detectives had no specific suspects after nearly two months of investigation, but the case started to break at the end of December 2002 with the recovery of Gonzales's cell phone and Gonzales's return to Duell Vocational Institute (DVI) for a parole violation.

C. Recovery Of Gonzales's Cell Phone-December 22, 2002:

On December 22, 2002, Modesto Police Detective Phillip Owen responded to a call from a Modesto store owner who had shot a man who had attempted to rob him. The would-be robber, later identified as Manuel "Wino" Quijas, was dead at the scene. Owen found a loaded handgun and a cell phone in Quijas's possession. The cell phone belonged to Gonzales.

In an attempt to identify the body, Detective Owen left messages for Gonzales to call him. Gonzales contacted Detective Owen two days later and confirmed that his cell phone had been missing from his bedroom for a couple of days.

The prosecution produced the records for Gonzales's cell phone at trial. The records for November 5, 2002, were consistent with other testimony regarding contacts between Gonzales and the principal players in the MacDougall crime.

D. Gonzales Requests Meeting With Police-January 27, 2003:

In August 2002, Gonzales was released on parole after serving a prison sentence for assault with a deadly weapon. On December 24, 2002, he was rearrested for a parole violation after failing a drug test. Gonzales arrived at DVI on December 30, 2002.

On January 27, 2003, Sergeant David Stapp, the supervisor of the reception center at DVI, received a letter from Gonzales requesting a confidential meeting. Gonzales indicated that he had urgent information about a murder. Stapp set up the meeting. He observed that Gonzales was very nervous. Gonzales asked Stapp to contact Detective Phillip Owen of the Modesto Police Department, stating that he had information about the Sund-Palosso murders in Yosemite and a recent murder in the local area.

Sergeant Stapp and Owen both knew that Cary Stayner had been convicted of the Sund-Palosso murders, and Detective Owen was unaware of any other unsolved murders in the Modesto area. Owen asked Sergeant Stapp to get more information from Gonzales.

E. Statements Made By Gonzales-January 31, 2003:

During his second interview with Sergeant Stapp, Gonzales stated that he had information about the murder of Daniel MacDougall in Tracy. He added, "'I was there.'" Gonzales requested that an attorney be present before he continued his conversations with law enforcement. Stapp ended the interview and contacted Detective Dean Hicks at the Tracy Police Department. Hicks arranged to conduct a videotaped interview with Gonzales at DVI that afternoon.

Detective Shawn Steinkamp and Deputy District Attorney Todd Turner accompanied Detective Hicks to the interview. According to Hicks, Gonzales was willing to provide information but did not want to receive any time as a result of doing so. Steinkamp explained to Gonzales that they needed to hear what Gonzales knew before they could make any deals. Gonzales responded, "[It] ain't gonna work that way."

F. DVI Contacts Lead To Christina Flores:

Sergeant Stapp identified Gonzales's girlfriend Christina Flores as a frequent visitor to Gonzales at DVI. Stapp discovered two addresses for Flores in the DVI records: (1) as Gonzales's girlfriend living at an address in Tracy; and (2) as his wife living at the same address as Gonzales's parents in Modesto.

Flores and Gonzales's mother, Deborah Phipps, visited Gonzales on February 15, 2003. Stapp and Detective Hicks reviewed the audio recording of that visit. Among other things, Gonzales told the two women to make sure that Flores stayed at his parent's residence to keep her from "running her fucking mouth to the homicide detective" and others.

Modesto police executed a search warrant at the parent's address on February 27, 2003. The search revealed gang indicia, rap lyrics that appeared to have been authored by Gonzales at DVI, and letters from Gonzales to his mother and Flores. The officers found Flores in her bedroom. She asked to be taken to the police department in handcuffs so that Gonzales's parents would be unaware that she wanted to cooperate. The police provided Flores with protection. Flores became the prosecution's star witness.

G. Flores's Sister Was The Link To Daniel:

Christina Flores's younger sister, S.F., was Daniel's girlfriend. In October 2002, Gonzales and Flores overheard a cell phone conversation between S.F. and Daniel. Gonzales took the phone and the conversation turned to what types of guns Daniel's father collected. After the phone conversation about the guns, S.F. invited Flores and Gonzales to Daniel's house to meet Daniel face-to-face. Daniel, who was home alone, gave them a tour of the house and garage where they saw the safe containing the gun collection. Daniel explained that only his father could open the safe. S.F. did not tell police about the phone call or home tour until they served a search warrant on the Flores family residence in Tracy on February 27, 2003.

H. Flores Provides Information About Daniel's Murder:

Flores had a juvenile record and associated with Norteños and Norteño "wannabes" at the time of Daniel's murder. She enjoyed the gang identity, personal notoriety and respect.

Both Gonzales and Barragan told Flores that they shot Daniel. Gonzales confessed to Flores within hours of the murder; Barragan confessed to her in February 2003.

Flores knew about the plans for a home invasion robbery and observed Gonzales's efforts to recruit others to take part. Gonzales shared his plans with Barragan, Herrera and Dominguez. Gonzales bragged that they could get 45 guns from the MacDougall house. According to Flores, Gonzales and his cohorts considered several approaches to the problem of opening the gun safe without a key or combination. Flores provided information about the interior of the MacDougall home. Gonzales eventually decided to take Daniel hostage before school and wait for his parents to return home to unlock the safe. The four participants would divide up the guns to sell or keep for themselves. Flores would share what Gonzales received. They purchased a scanner, walkie-talkies and masks.

Flores testified that on the morning of November 5, 2002, Gonzales left their apartment around 4:00 a.m. He returned around 9:00 a.m., wearing all black. Flores described his face as pale "beyond white." Gonzales wrapped himself around Flores and started crying. Flores asked if anybody got hurt. Gonzales responded, "Titi, Daniel's dead." He told her that he had driven Barragan, Herrera and Dominguez to the MacDougall house in her father's Mazda. The four participants watched someone drive away from the house at 5:30 a.m. At that point, Gonzales and Barragan went up to the house and Gonzales kicked the door. When Daniel came out of the house, Gonzales and Barragan ran up wearing masks and told Daniel to go inside. Gonzales ...


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