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Richard A. Hernandez v. G.D. Luis

January 25, 2012




Richard A. Hernandez, a state prisoner, proceeds pro se with an amended petition for writ of habeas corpus [doc #18] pursuant to 28 U.S.C. § 2254. The parties have consented to jurisdiction by a United States Magistrate Judge and this matter is submitted for decision.


Evidence at trial showed that, on June 6, 2005, Hernandez walked out of a Mervyns store wearing a pair of shoes he had been trying on and for which he had not paid. When confronted by a loss prevention officer outside the store, Hernandez said he had a pistol, pulled what looked to be a gun from his waistband, and pointed it at the officer before making his escape.

About three weeks later, around 1:00 a.m. on June 26, 2005, Hernandez showed up at the house where he had lived with his former girlfriend, Hannah Blum, until about a week before. When she opened the door, he pushed his way in and became angry when he saw she had purchased new sandals for their children and a new purse for herself. He grabbed the purse, and when she tried to grab it back, he "[p]ulled a gun out" and pointed it at her from a few feet away, telling her to let go. They struggled for a time and he threatened to hurt her, until she finally ran to a nearby house and called the police.

On August 8, 2005, police went to Hernandez's mother's house to arrest him. Upon entering the house, one of the officers found a gun wrapped inside a T-shirt on a kitchen chair and ammunition in the pockets of a pair of jeans found with the shirt. Hernandez was later found hiding in the attic.

Based on the Mervyns incident, Hernandez was charged with robbery and being a felon in possession of a firearm. The information also alleged that he personally used a handgun in committing the robbery. Based on the incident with his former girlfriend, he was charged with robbery, making a criminal threat, and being a felon in possession of a firearm. The information also alleged that he personally used a handgun in committing the robbery and making the criminal threat. The information included a third count of being a felon in possession of a firearm based on the gun discovered at his mother's house when he was arrested there. Finally, although not relevant here, he was charged with inflicting corporal injury on his former girlfriend for an incident in July 2005. The information also alleged one prior conviction for enhancement purposes.

The jury found Hernandez guilty on all charges and found true the gun use enhancement allegations and the prior conviction allegation. The court sentenced him to an aggregate term of 20 years and four months in state prison. The California Court of Appeal, Third District, affirmed the judgment and the California Supreme Court denied a petition for review. Hernandez sought habeas corpus relief in state court which was likewise denied.


The pending federal petition asserts the following five grounds for relief:

A. Insufficient evidence supported the two firearm use enhancements and three convictions for being a felon in possession of a firearm;

B. Trial counsel, Ken Brody, rendered ineffective assistance by failing to move to sever the four charged incidents for trial purposes;

C. Trial counsel rendered ineffective assistance in failing to object to the admission of Blum's testimony that Hernandez was in possession of a shotgun on an unspecified date;

D. Trial counsel rendered ineffective assistance during closing argument; and

E. Trial counsel's ineffective assistance violated Hernandez's right to due process of law.

For the reasons that follow, these grounds are without merit and the petition should be denied.


An application for writ of habeas corpus by a person in custody under 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); see also 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)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Under the AEDPA, federal habeas corpus relief is also precluded 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); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001).

This court looks to the last reasoned state court decision to determine whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 919. The state court's factual findings are presumed correct if not rebutted with clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Taylor v. Maddox, 336 F.3d 992, 1000 (9th Cir. 2004). It is the habeas corpus petitioner's burden to show the state court's decision was either contrary to or an unreasonable application of federal law. Woodford v. Visciotti, 537 U.S. 19, 25 (2002).


A. Sufficiency of the Evidence

Hernandez challenges the sufficiency of evidence supporting the two gun use enhancements and all three felon in possession convictions. In particular, he argues there was no proof that the gun he brandished during either robbery was a real firearm; the gun the Mervyns employee saw could have been an imitation, and Blum testified that the gun he used to rob her was the same toy gun she later saw. He further argues there was no nexus between himself and the gun found in his mother's house at the time of his arrest.

The Due Process Clause of the Fourteenth Amendment protects an 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). On habeas corpus review, sufficient evidence supports a conviction so long as, "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); see also Prantil v. California, 843 F.2d 314, 316 (9th Cir. 1988) (per curiam).

The Jackson standard is applied "with explicit reference to the substantive elements of the criminal offense as defined by state law." Davis v. Woodford, 384 F.3d 628, 639 (9th Cir. 2004) (quoting Jackson, 443 U.S. at 319.) The dispositive question 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). Under the AEDPA, thisstandard is applied with an additional layer of deference. Juan H. v. Allen, 408 F.3d 1262, 1274-75 (9th Cir. 2005). This court must ask "whether the decision of the ...

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