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Sergio T. Torres v. Ken Clark

July 7, 2011

SERGIO T. TORRES,
PETITIONER,
v.
KEN CLARK,
RESPONDENT.



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

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT TO ENTER JUDGMENT IN FAVOR OF RESPONDENT, AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY [Doc. 1]

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge. Local Rule 305(b).

Following a jury trial in the Madera County Superior Court, Petitioner was convicted of assault by means of force likely to produce great bodily injury (Cal. Penal Code*fn1 § 245(a)(1)). The jury also found true that Petitioner personally used a deadly weapon (§ 12022(b)(1)) and personally inflicted great bodily injury (§ 12022.7(a)). In a bifurcated proceeding, the trial court found true that Petitioner suffered a prior strike conviction (§ 667(b)-(i)).

Petitioner filed a timely notice of appeal. On November 10, 2008, the California Court of Appeal, Fifth Appellate District affirmed the judgment.

Petitioner filed a petition for review in the California Supreme Court. The California Supreme Court denied the petition on February 11, 2009.

Petitioner did not file any post-conviction collateral petitions.

Petitioner filed the instant petition for writ of habeas corpus on September 30, 2009. Respondent filed an answer to the petition on October 27, 2010. Petitioner filed a traverse on June 30, 2011.

STATEMENT OF FACTS*fn2

In the early morning hours of December 9, 2006, in the parking lot of a bar in Madera, an altercation occurred between Koren Eason and Alejandro Blanco. Eason thought Blacno had scratched or kicked her car and she hit him. Blanco grabbed Eason's hand to stop her. During the altercation, [Petitioner], also known as "Checko," came out of the bar and into the parking lot. [Petitioner] and Eason knew each other, and Eason told [Petitioner] what had happened.

[Petitioner] approached Blanco from behind and hit him until he fell to the ground. Blanco got up and [Petitioner] threw him to the ground. With Blanco on the ground, [Petitioner] pulled out something and stabbed Blanco in his left side. Blanco did not see the person who hit and stabbed him, but he could hear people yell, "Checko did it."

Joyce Lopez testified that she had been in the bar and left with others when the bar closed. In the parking lot, she witnessed the altercation between Eason and Blanco, and saw [Petitioner] stab Blanco. Lopez identified [Petitioner] in a photographic lineup and in court. According to Lopez, [Petitioner] was wearing a gray turtleneck, and she heard Eason identify him as "Checko." After the incident, Lopez saw [Petitioner] get in a car with Eason and drive off.

Ann Borrero had come to the bar that evening with Eason, but she was in the bar's restroom when the stabbing occurred. When she came outside right after the incident, she noticed Eason was gone and she heard everyone yelling, "Checko did it." Borrero knew [Petitioner] as "Checko" and knew that [Petitioner] and Eason used to date. Borrero later identified [Petitioner] in a photographic lineup.

After the incident, someone in the parking lot flagged down Officer Jason Gutknecht. Gutknecht saw Blanco holding a bloody shirt to his left side. Upon inspection, Gutknecht saw that Blanco had a puncture wound below his left armpit, a laceration on his nose, bruising on his left eye, and bloody lips. Blanco's stab wound required three staples and a two-day hospital day.

Officer Gutknecht spoke to both Lopez and Borrero. Lopez told him that [Petitioner's] name was Checko. Borrero told him that [Petitioner] was a Hispanic male and that he was wearing a gray turleneck and dark jeans.

Later that morning, Lopez was driving around town with some people when someone in the car received a phone call asking the person to pick up [Petitioner] and take him to the bar to retrieve his pickup. When [Petitioner] got into the vehicle, Lopez noticed that he was still wearing a gray turleneck. Lopez described [Petitioner] as "real hysterical, like something happened."

Detective Hector Garibay investigated the stabbing and spoke to Eason. She told him that Blanco had grabbed her in the car that evening. When the bar closed, Blanco "keyed" her car. Eason admitted getting into a fight with Blanco, which she told [Petitioner] about before she got into her car to leave. Eason told Garibay that she was aware that a stabbing had occurred and she had heard [Petitioner] was involved. Eason told Garibay where [Petitioner] might be located.

Detective Garibay's investigation revealed that "Checko" is short for "Sergio." Prior police contacts with [Petitioner] prompted the detective to use [Petitioner's] likeness in the photographic lineup shown to witnesses, including Lopez and Borrero.

Detective Garibay located [Petitioner] and arrested him. [Petitioner] admitted to Garibay that he had gotten into a fight with someone at the bar that night but denied that he stabbed anyone. A search of [Petitioner's] residence found two small pocket knives and two gray sweatshirts.

Defense Case

The witnesses Lopez and Borrero had described Checko as being five feet seven inches tall and weighing 150 to 160 wounds. At trial, [Petitioner] was reported to be five feet ten inches tall and to weigh 185 pounds. A defense witness who was five feet seven inches tall and weighed 150 pounds was asked to stand next to [Petitioner] in front of the jury.

The witness Lopez testified on direct that she saw Eason accusing Blacno of having damaged her car, a white, Jeep-like vehicle. Eason testified that she drove a gold Hyundai SUV on the night of the incident.

DISCUSSION

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 Madera 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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