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Elias R. Murillo v. Matthew Cate


December 12, 2011


The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge


Elias R. Murillo, a state prisoner appearing pro se, filed a Petition for Habeas Corpus under 28 U.S.C. § 2254. Murillo is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the La Palma Correctional Center, Elroy, Arizona. Respondent has answered, and Murillo has replied.


In July 2007 Murillo entered a guilty plea in two cases in the Sutter County Superior Court. In the first case, Murillo pled to Burglary in the Second Degree, Cal. Penal Code § 459, Attempted Murder, Cal. Penal Code § 664/187, and admitted that he inflicted great bodily injury on the victim, Cal. Penal Code § 12022.7. Murillo was sentenced to a stipulated, aggregate term of ten years, plus a $2,000 restitution fine, Cal. Penal Code § 1202.4, and a $2,000 parole revocation fine, Cal. Penal Code § 1202.45. At a subsequent hearing, Murillo was ordered to make direct restitution to the victim in the amount of $2,810.20. In the second case, Murillo pled no contest to Wilful Infliction of Corporal Injury (Spousal Abuse), Cal. Penal Code § 273.5(a).

The trial court sentenced Murillo to a three year prison term to be served concurrently with the ten-year term imposed in the first case. The trial court also imposed a $600 restitution fine, Cal. Penal Code § 1202.4, and a $600 parole revocation fine, Cal. Penal Code § 1202.45. At a subsequent hearing, the trial court ordered direct restitution to the victim in the amount of $2,924.97. The California Court of Appeal, Third Appellate District, affirmed the judgment in an unpublished decision on February 20, 2008.*fn1 The record does not reflect, nor does Murillo contend, that he sought further review in the California Supreme Court.

On May 21, 2008, Murillo filed a motion in the Sutter County Superior Court to reduce the restitution and fines to the minimum amount provided by law. The Sutter County Superior Court denied Murillo's motion, and the Court of Appeal, Third District, affirmed in an unpublished decision on March 16, 2009.*fn2 On November 16, 2008, while his appeal from the denial of his motion to reduce the restitution was still pending, Murillo filed a petition for habeas relief in the Sutter County Superior Court, which was denied in a form order. Murillo's subsequent petition for habeas relief in the Court of Appeal, Third District, was summarily denied without opinion or citation to authority. The California Supreme Court summarily denied Murillo's petition for habeas relief to that court without opinion or citation to authority on November 10, 2009. Murillo timely filed his Petition for relief in this Court on January 11, 2010.

Because the facts underlying Murillo's plea are unnecessary to a determination of the issues raised in the Petition, they are not repeated here.


In his Petition, Murillo raises three grounds: (1) imposition of the restitution fine violated state law; (2) in the absence of evidence of Murillo's future earnings and financial obligations, and the victim's losses, the restitution order violated due process; and (3) ineffective assistance of counsel for failing to object to the restitution order. Respondent does not assert any affirmative defense.*fn3


Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn4 The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn5 The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts.*fn6 Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn7 When a claim falls under the "unreasonable application" prong, a state court's application of Supreme Court precedent must be "objectively unreasonable," not just "incorrect or erroneous."*fn8 The Supreme Court has made clear that the objectively unreasonable standard is "a substantially higher threshold" than simply believing that the state court determination was incorrect.*fn9 "[A]bsent a specific constitutional violation, federal habeas corpus review of trial error is limited to whether the error 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"*fn10 In a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state court criminal trial is whether the error had a substantial and injurious effect or influence in determining the outcome.*fn11 Because state court judgments of conviction and sentence carry a presumption of finality and legality, the petitioner has the burden of showing by a preponderance of the evidence that he or she merits habeas relief.*fn12

The Supreme Court recently underscored the magnitude of the deference required: As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. Cf. Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (discussing AEDPA's "modified res judicata rule" under § 2244). It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther. Section 2254(d) reflects the view that habeas corpus is a "guard against extreme malfunctions in the state criminal justice systems," not a substitute for ordinary error correction through appeal. Jackson v. Virginia, 443 U.S. 307, 332, n. 5, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment). As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.*fn13

In applying this standard, this Court reviews the "last reasoned decision" by the state court.*fn14 State appellate court decisions that summarily affirm a lower court's opinion without explanation are presumed to have adopted the reasoning of the lower court.*fn15 This Court gives the presumed decision of the state court the same AEDPA deference that it would give a reasoned decision of the state court.*fn16

Under California's unique habeas procedure, a prisoner who is denied habeas relief in the superior court files a new original petition for relief in the court of appeal. If denied relief by the court of appeal, the defendant has the option of either filing a new original petition for habeas relief or a petition for review of the court of appeal's denial in the California Supreme Court.*fn17

This is considered as the functional equivalent of the appeal process.*fn18 Under AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.*fn19 This presumption applies to state trial courts and appellate courts alike.*fn20

To the extent that Murillo raises issues of the proper application of state law, they are beyond the purview of this Court in a federal habeas proceeding.*fn21 It is a fundamental precept of dual federalism that the states possess primary authority for defining and enforcing the criminal law.*fn22 "[A] state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus."*fn23 A federal court errs if it interprets a state legal doctrine in a manner that directly conflicts with the state supreme court's interpretation of the law.*fn24 A determination of state law by a state intermediate appellate court is also binding in a federal habeas action.*fn25 This is especially true where the highest court in the state has denied review of the lower court's decision.*fn26

A petitioner may not transform a state-law issue into a federal one by simply asserting a violation of due process.*fn27 "[The Supreme Court has] long recognized that a mere error of state law is not a denial of due process."*fn28 "[A]bsent a specific constitutional violation, federal habeas corpus review of trial error is limited to whether the error 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"*fn29 "Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension."*fn30


Ground 1: Violation of State Law In his first ground, Murillo argues that the imposition of the restitution orders violated the California Constitution, Art. 1, § 7(a), the California Government Code § 1367(a), and California Penal Code § 1202.4(d). This argument is beyond the purview of this Court in a federal habeas proceeding.*fn31 Murillo is not entitled to relief under his first ground.

Ground 2: Violation of Due Process

In his second ground, citing the Fourteenth Amendment, California Constitution, Art. 1, § 7(a), and California Penal Code § 1202.4(d), Murillo argues that the imposition of the restitution without adequate evidentiary support for both his ability to make restitution and the actual loss suffered by the victim denied him due process of law. Respondent contends that this claim is not cognizable under § 2254.*fn32 This Court agrees that controlling Ninth Circuit authority forecloses Murillo's claim.

The plain meaning of the text of § 2254(a) makes clear that physical custody alone is insufficient to confer jurisdiction. Section 2254(a)'s language permitting a habeas petition to be entertained "only on the ground that [the petitioner] is in custody in violation of the Constitution or laws or treaties of the United States," (emphasis added), explicitly requires a nexus between the petitioner's claim and the unlawful nature of the custody. See Dickerson v. United States, 530 U.S. 428, 439 n. 3, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000) ( "Habeas corpus proceedings are available only for claims that a person 'is in custody in violation of the Constitution or laws or treaties of the United States.'" (quoting 28 U.S.C. § 2254(a))).

The United States Supreme Court has declared that where a statute does not define its terms, and here that might be said about the statutory phrase "in custody in violation of the Constitution or laws or treaties of the United States," we are to give such a phrase its ordinary or natural meaning. See Johnson v. United States, --- U.S. ----, 130 S.Ct. 1265, 1269-70, 176 L.Ed.2d 1 (2010); Bailey v. United States, 516 U.S. 137, 144-45, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). Giving the crucial statutory phrase within § 2254(a) its ordinary, natural meaning, we cannot but conclude that to sustain his habeas challenge, [Murillo] must show that his custody in itself, or its conditions, offends federal law. It is not enough for [Murillo] to say, in substance, my custody is okay and consistent with federal law, but I should not be burdened by this restitution requirement. What [Murillo] is required to pay in restitution is not by ordinary meaning a part of his custody.

. . . . [Murillo's] challenge to the restitution order lacks any nexus, as required by the plain text of § 2254(a), to his custody. While [Murillo's] liberty has been severely restrained by his conviction and custodial sentence, the remedy that [Murillo] seeks, the elimination or alteration of a money judgment, does not directly impact-and is not directed at the source of the restraint on-his liberty. If successful, [Murillo] could reduce his liability for restitution but would still have to serve the rest of his custodial sentence in the same manner; his remedy would affect only the fact or quantity of the restitution that he has to pay to the victim. [Murillo's] argument is only that he has been ordered to pay restitution "in violation of the Constitution or laws or treaties of the United States," 28 U.S.C. § 2254(a), and not that his custody is unlawful. That he is in physical custody while attacking the restitution order is insufficient to confer jurisdiction over his habeas petition.*fn33

Murillo's second ground fails for the same reason. Because this Court lacks subject matter jurisdiction over Murillo's second ground, it must be dismissed. This dismissal notwithstanding, because it forms the basis underlying Murillo's third ground, ineffective assistance of counsel, this Court must address that issue on the merits.

In affirming the denial of Murillo's motion to reduce the restitution amount, the Court of Appeal held:

[Murillo] filed a supplemental brief arguing that the trial court failed to consider defendant's ability to pay in awarding victim restitution in the amount of $5,700 and in imposing restitution fines totaling $2,600 and corresponding parole revocation restitution fines. [Murillo] further argues only hearsay evidence supported the victim restitution award other than the amount of $504.06 for lost wages and that the victim did not request restitution. He claims the trial court abused its discretion and that his due process rights were violated. [Murillo] requests that this court overturn and vacate the victim restitution award and reduce the fines to the statutory minimum of $200. [Murillo] also requests that this court replace defense appellate counsel who failed to "address all the issues that had to be brought up."

On May 28, 2008, [Murillo] filed a motion to reduce the amount of the victim restitution and the restitution fines. [Murillo] explained that he would have brought the motion sooner "had [he] understood the law." He noted that when he was sentenced in case Nos. CRF070735 and CRF070067 on July 30, 2007, to state prison for an aggregate term of 10 years, the trial court imposed the restitution fines. He claimed that restitution to the victim was awarded after a hearing was held on March 7, 2008. He claimed that he did not have the ability to pay the fines or victim restitution at sentencing and that his financial situation had not changed. He argued that the ability to pay finding could not be implied from the record nor could it be implied that the trial court was aware that it had a duty to so find. [Murillo] argued the trial court's omission violated his Fifth and Fourteenth Amendments right to due process.

The minute order reflects the following:

"The Court caused the following Minute Order to be entered into the record: [¶] The Court has received, read, and considered the [Murillo's] Motion to Reduce Restitution and Fines to Minimum Amount Provided by Law. Said motion is denied. [¶] The Court hereby directs the Clerk to serve a copy of this Minute Order to each party ." There were no appearances by counsel or [Murillo] at the hearing on [Murillo's] motion nor was a court reporter present.

[Murillo] had the opportunity to challenge the restitution fines and parole fines on an appeal from the judgment which he states was entered on July 30, 2007. He cannot challenge these same fines from the denial of a motion to reduce or modify the fines. Although an order made after judgment affecting a defendant's substantial rights is appealable (Pen.Code, § 1237, subd. (b)), the order insofar as it denied [Murillo's] motion to reduce the restitution and parole fines appears to be non-appealable because the appeal would bypass or duplicate an appeal taken from the judgment. (See People v. Thomas (1959) 52 Cal.2d 521, 527, 342 F.2d 889; People v. Gallardo (2000) 77 Cal.App.4th 971, 980-81, 92 Cal.Rptr.2d 161.) In any event, the record on appeal is limited and does not support [Murillo's] contention that he has no ability to pay.

With respect to the victim restitution, based on the date given by defendant, he apparently failed to timely appeal from the March 7, 2008 order awarding victim restitution. Instead, he filed a motion to reduce the award on May 28, 2008. The trial court had recently heard the issue and [Murillo] presented no basis to modify the award. (Pen.Code, § 1202.4, subd. (f).) In any event, defendant's inability to pay has no impact on the amount of victim restitution . (Pen.Code, § 1202.4, subd. (g).)

We decline [Murillo'] request for appointment of new defense appellate counsel.

Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to [Murillo].*fn34

As with his first ground, although Murillo attempts to couch his argument in constitutional terms as a denial of due process, that attempt fails. The federal authorities that Murillo cites for the proposition that the amount of restitution ordered must be proven by a preponderance of the evidence as to ability and the amount of the loss, including the Supreme Court decision in Hughey,*fn35 were decided on the basis of federal statutory interpretation, not constitutional grounds. Accordingly, they are inapposite in a federal habeas proceeding.

In his Traverse, Murillo argues that requiring restitution not based upon his resources constitutes cruel and unusual punishment in violation of the Eighth Amendment. The Supreme Court has never held that the imposition of restitution on a defendant who is indigent at the time of sentencing violates the Eighth Amendment. Indeed, the Ninth Circuit rejected an argument that the Federal Mandatory Victims Restitution Act ("MVRA"), requiring imposition of full restitution without regard to the defendant's economic situation,*fn36 violates the Eighth Amendment.*fn37

To the extent that Murillo may be arguing that incarceration due to indigence violates due process, that argument fails on the facts. At present, Murillo is not being held in custody for failing to make a restitution payment. Should Murillo be incarcerated at some point in the future for a failure to make the restitution payment at a time when he is indigent, it may constitute a due process violation.*fn38 That point has not yet been reached. Because, this court lacks subject matter jurisdiction, and he has failed to present a question of constitutional dimension, Murillo is not entitled to relief under his second ground.

Ground 3: Ineffective Assistance of Counsel

In his third ground Murillo argues that, because trial counsel did not object to the restitution orders, counsel was ineffective. Respondent, relying solely upon its argument that Murillo's claims are not cognizable in a federal habeas proceeding under § 2254, does not address this claim. It appears from the record that Murillo did not raise this claim until his habeas petition in the California Supreme Court. Because the California Supreme Court denied the petition summarily, there is no reasoned decision for this Court to review.

A state court is not required to give reasons before its decision can be deemed to be "adjudicated on the merits."*fn39 When there is no reasoned state-court decision denying an issue presented to the state, "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."*fn40 "The presumption may be overcome when there is reason to think that some other explanation for the state court's decision is more likely."*fn41 Where the presumption applies, this Court must perform an independent review of the record to ascertain whether the state court decision was "objectively unreasonable."*fn42 In conducting an independent review of the record, this Court presumes that the relevant state-court decision rested on federal grounds,*fn43 giving that presumed decision the same deference as a reasoned decision.*fn44 The scope of this review is for clear error of the state court ruling on the petition:

[A]lthough we cannot undertake our review by analyzing the basis for the state court's decision, we can view it through the "objectively reasonable" lens ground by Williams . . . . Federal habeas review is not de novo when the state court does not supply reasoning for its decision, but an independent review of the record is required to determine whether the state court clearly erred in its application of controlling federal law. Only by that examination may we determine whether the state court's decision was objectively reasonable.*fn45

"[A]lthough we independently review the record, we still defer to the state court's ultimate decision."*fn46

Under Strickland, to demonstrate ineffective assistance of counsel, Murillo must show both that his counsel's performance was deficient and that the deficient performance prejudiced his defense.*fn47

A deficient performance is one in which "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment."*fn48 Murillo must show that defense counsel's representation was not within the range of competence demanded of attorneys in criminal cases, and that there is a reasonable probability that, but for counsel's ineffectiveness, the result would have been different.*fn49 An analysis that focuses "solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective."*fn50

In reviewing ineffective assistance of counsel claims in a federal habeas proceeding:

The question "is not whether a federal court believes the state court's determination" under the Strickland standard "was incorrect but whether that determination was unreasonable-a substantially higher threshold." Schriro, supra, at 473, 127 S.Ct. 1933. And, because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard. See Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004) ("[E]valuating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations").*fn51

It is through this doubly deferential lens that a federal habeas court reviews Strickland claims under the § 2254(d)(1) standard.*fn52

The Supreme Court, applying the "doubly deferential standard," has made clear that when adjudicating ineffective assistance of counsel claims in federal habeas proceedings, unlike the situation on direct review, focus is not on whether counsel's performance fell below the Strickland standard. Rather, the focus is on whether the state-court decision holding that counsel was not ineffective constituted an "unreasonable application of federal law[,][which] is different from an incorrect application of federal law."*fn53

Under § 2254(d), a habeas court must determine what arguments or theories supported or, as here, 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.*fn54

The Court of Appeal found that Murillo's state law arguments lacked merit. For the reasons discussed above in connection with Murillo's second ground, Murillo's constitutional argument likewise lacks merit. Accordingly, the failure of trial counsel to raise meritless claims did not result in any prejudice to Murillo. This Court cannot say that the assumed decision of the California Supreme Court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn55 Nor, viewing the matter through the doubly-deferential lens of Mirzayance-Richter, can this Court find that the state court unreasonably applied the correct legal principle to the facts of Murillo's case within the scope of Andrade-Williams-Schriro; i.e., the state court decision was not more than incorrect or erroneous, its application of clearly established law was not objectively unreasonable. Murillo is not entitled to relief under his third ground.


Murillo is not entitled to relief on any ground raised in his Petition.

IT IS THEREFORE ORDERED THAT the Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus is DISMISSED.

IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of Appealability.*fn56 Any further request for a Certificate of Appealability must be addressed to the Court of Appeals.*fn57

The Clerk of the Court is to enter judgment accordingly.

James K. Singleton, Jr.

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