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Keith Seriales v. K. Harrington

February 1, 2012

KEITH SERIALES,
PETITIONER,
v.
K. HARRINGTON,
RESPONDENT.



The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge

ORDER DENYING PETITIONER'S MOTION FOR STAY AND ABEYANCE AND DENYING MOTION TO EXPAND RECORD TO CONSIDER COPY OF "CD" RECORDING [Docs. 22, 38]

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. 23]

Petitioner is 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).

BACKGROUND AND STATEMENT OF FACTS*fn1

Appellant Keith John Seriales stands convicted, following a jury trial, of first degree murder with kidnap-murder, foreign object penetration-murder, and murder by torture special circumstances (Pen. Code, [N.1] §§ 187, subd. (a), 190.2, subd. (a)(17), (18); count 1); torture (§ 206, count 2); kidnapping (§ 207, subd. (a); count 3); sexual penetration with a foreign object, involving torture, kidnapping, and tying and binding (§§ 289, subd. (a), 667.61, subds (a), (d) & (e); count 4); sexual penetration with a foreign object while acting in concert, involving torture, kidnapping, and tying and binding (§§ 264.1, 289, subd. (a), 667.61, subds. (a), (d) & (e); count 5); and sexual penetration with a foreign object of a person under age 18 (§ 289, subd. (h); count 6). [N.2] As to each count, two vicarious arming allegations (§ 12022, subd. (a)(2)), one involving a nine-millimeter handgun and the other an AK-47 assault rifle, were found to be true. The prosecution sought the death penalty, but jurors determined the appropriate penalty to be life in prison without the possibility of parole. Following denial of his new trial motion, appellant was sentenced to a total unstayed term of life in prison without the possibility of parole plus 20 years. In this timely appeal, he raises a number of claims of trial and sentencing error. For the reasons that follow, we will affirm the convictions, but remand the matter for re-sentencing.

[N.1] All statutory references are to the Penal Code unless otherwise stated.

[N.2] Due to a clerical error, the verdict form for count 6 refers to a violation of subdivision (a) of section 289 (citation.)

FACTS

I

DISCOVERY OF THE HOMICIDE AND SUBSEQUENT INVESTIGATION

Somewhere around 11:00 p.m. on January 24, 2001, Virginia Cabrera, who lived in rural Tulare County, heard two cars speed by, and her normally quiet dog started barking. The next morning, the bound, nude body of 17-year-old Eric Jones was found near Avenue 16 and Highway 43, less than a mile from Cabrera's residence. Ten 9-millimeter shell casings were located nearby, and five bullets were dug out of the ground underneath the body. There were bullet holes in Jones's back and a wooden stick protruding from his anus. Duct tape was wrapped around his face and head, and his hands and feet were taped together behind him. There were blue markings on his back. [N.3] An autopsy revealed nine entrance wounds to Jones's right back, with eight corresponding exit wounds to the chest. At least two of the entrance wounds showed evidence of tattooing, indicating very close-range shots. There was also a single gunshot entrance wound to the right cheek. Jones's face was bruised and abraded, and many of his teeth were broken or knocked free from their sockets. There was a superficial puncture wound on Jones's back that could have been made by a pointed blunt object such as a screwdriver or an ice pick. The skin of bruising extending six to eight inches into the body. Bruising of the rectum, as well as bruising and hemorrhage to the chest, indicated Jones was alive when the various wounds were inflicted. No injuries consistent with electrocution were noted; however, depending upon various factors, electrocution could have occurred without leaving physical evidence. The cause of death was exsanguination due to multiple gunshot wounds to the back. Death would have occurred within a few minutes.

[N.3] The prosecutor presented much of the evidence concerning the body's condition through photographs, rather than descriptive testimony.

Investigation focused on a group of Jones's acquaintances, who, like Jones, lived in or near Delano: Gerardo (Jerry) Zavala, who resided a few miles outside of town at a place called "the ranch"; appellant, who was 29 years old at the time and drove a white Jaguar; Jorge (George or Coce) Vidal, who was sometimes seen in appellant's company; 17-year-old Daniel Portugal; Juan Soto; his brother Gerardo Soto, who drove a green Intrepid; and Tyrone Ebaniz, who was then 15 or 16 years old.

Jones and Ebaniz were best friends, and they were together at the home of Antoinette Cota, Ebaniz's sister, the night Jones was murdered. Jones left alone, on foot, after dark. Ebaniz's whereabouts were unknown to his family until the next morning, when he returned to his grandmother's house, where he was living. The police contacted him that day.

The morning Jones's body was found, Vidal, the Sotos, and another person offered to burn the trash from inside the home of Juanita Zavala, a sister of Zavala who lived with him at the ranch. Juanita Zavala found the offer unusual. These individuals also had black bags with them. Patricia Mojica, another sister of Zavala who lived at the ranch with Gerardo Soto, recalled Vidal, the Soto brothers, Portugal, and appellant doing something in the backyard at the ranch around the time Jones's body was discovered. Around the time Jones was found murdered, Mojia saw the white Jaguar one night when just appellant and Vidal were there.

On January 25, appellant and his wife, Lupe Gonzalez, went to San Diego in the Jaguar and returned the next day. Gonzalez did not stay at their house on the night of January 26, because appellant called and told her to go to her brother's house. When she asked why, he would not say, but he seemed a little nervous.

On the evening of January 26, Vidal arrived at the Bakersfield residence of Cecilia Ramirez, whose husband was Vidal's cousin. Vidal said he had come to visit. He arrived in a white Jaguar. [N.4] The next day, he left and returned in the same Jaguar.

[N.4] Although Ramirez testified that the man driving the car was not in the courtroom, she previously had identified a photograph of [Petitioner] as that person.

Gerardo Zavala was arrested on January 27, 2001. There were several 55-gallon burn barrels behind his residence. On top of one were what appeared to be shoelace eyelets and brown leather that could have been from a belt.

Zavala was the godfather of Jose Jiminez's baby, and the two men also worked together part-time, doing auto painting. As a result, Jiminez spent time at Zavala's residence. Between the times Jones was in the news and Zavala's arrest, Jiminez was present in the shed in the back of Zavala's place when he overheard a conversation between appellant, Zavala, and Vidal. Jiminez did not recall whether either of the Soto brothers was present. Although he claimed at trial not to remember the conversation, he previously told the district attorney's investigator that he had a clear memory of what happened. He heard appellant say, "we finally got that nigger[.] Vidal then responded, "he won't be bothering us anymore[.]" appellant then told the others present that if they said anything different than what he said or told them to say, he was going to "stick a broom handle up their ass[.]" Jiminez told a different investigator that it was Vidal who made the first two remarks.

On January 27, 2001, authorities from Tulare and Kern Counties responded to Juan Soto's residence in Delano. Mail addressed to Gerardo Soto was found inside the residence, and a Dodge Intrepid registered to him was parked in the garage. Ebaniz's, Portugal's, and Juan Soto's fingerprints were found on the outside of the car.

Bloodstains and white residue that appeared to be detergent wipings were found on the garage floor. Shoe tracks were found in the bloodstains, which, DNA analysis showed, belonged to Jones. Near a washing machine in the garage was a bleach bottle with a pair of scissors inside. Jones's blood was found on the scissors. Also found inside the garage was a squeegee head without a handle. Pieces of black electrical tape, that appeared to have been torn from the roll, were found in various locations in the garage. A piece of duct tape was found on the ground by the washer, and a number of beer cans were found inside the garage and in the side yard of the residence. Vidal's and Gerardo Soto's fingerprints were found on some of the cans.

That same day, appellant was arrested and subsequently gave a statement to Sergeant Skiles, which is described in more detail, post. When his white Jaguar was searched, newspapers from Fresno and Bakersfield, dated January 26, 2001, were found inside. On the front page of the Fresno paper was an article about Jones's death.

The day following his arrest, appellant directed Skiles to the location in Bakersfield at which he had last seen Vidal. Appellant expressed to Skiles that he was afraid. Vidal was arrested early that morning at Cecilia Ramirez's residence, the location shown to Skiles by appellant. Vidal subsequently directed Skiles to two 9-millimeter handguns and a loaded SKS rifle. [N.5] One of the handguns was determined to have fired all 10 shell casings recovered from the location where Jones was killed, and was the gun used to kill Jones.

[N.5] An SKS rifle is very similar to an AK-47 assault rifle.

II

APPELLANT'S STATEMENT

The tape recording of the statement appellant gave to Sergeant Skiles was played for the jury. [N.6] In it, appellant related that he was acquainted with Jones, who had come by one day about a month earlier to try to sell him a nine-millimeter pistol. Appellant believed Jones had stolen the weapon, as someone called "Crispie" subsequently tried to take it back from appellant. Crispie brought Jones to appellant's house, as Jones apparently had tried to say that appellant had taken the gun from him. When Crispie put a gun to Jones's head, appellant returned the weapon. Appellant lost the $150 he had paid for it. Appellant denied that Jones had ever stolen anything from him personally, although he had heard that Jones and a couple of guys were going to try to rob him or something. Appellant never confronted Jones about these rumors, and nothing ever happened.

[N.6] Appellant professed to know only first names or nicknames and, in the case of Daniel Portugal, simply referred to a dark-complected male with thick eyebrows. For the sake of clarity, we have inserted the actual names, wherever possible, as established by other evidence presented at trial.

With respect to the homicide, appellant was at home when Gerardo Soto telephoned around 7:00 or 7:30 p.m. Gerardo Soto said Jones was there and to bring Vidal. Appellant did not know why "[t]hey" wanted him to bring Vidal over, but he thought Jones had tried to steal Vidal's car or something. They did not tell appellant what they were going to do until he got there and saw everything. He knew they were going to confront Jones, but "just figured we're just gonna beat him up and let him go."

Vidal was already at appellant's house. The two men were "pretty close," with Vidal being someone who thought that if he hung around with appellant, he could get rich. [N.7] They first went to the ranch to pick up Zavala. Gerardo Soto had not said to bring him; it was Vidal's idea to do so. When Zavala was not home, appellant and Vidal went to Juan Soto's house.

[N.7] Appellant admitted being a drug dealer.

Upon their arrival, appellant and Vidal went into the house and then on into the garage. Gerardo and Juan Soto, Zavala, Portugal, and Ebaniz were there. Portugal was walking around with an AK-47. Jones was already tied up, and everyone except Ebaniz was beating and kicking him. Ebaniz was just watching. Gerardo Soto and Zavala told appellant that Ebaniz had brought Jones there, and had set him up by making a call to get him to come. Neither appellant nor Vidal had known Ebaniz was going to do that, but Vidal "got a hardon" when he saw Jones lying there.

Within a couple minutes of appellant's arrival, Vidal struck Ebaniz, whom appellant told not to worry. He and Zavala took the youngster into the house. Appellant stayed in the house a lot, talking to Ebaniz and telling him to "just kick back." Juan Soto also mostly stayed in the house, as he was scared. Appellant went back and forth between the house and the garage, as sometimes Vidal called to him. Sometimes Gerardo Soto had the AK-47, and other times Portugal had it. Both pointed it at Jones's head while they were kicking him. Vidal was hitting Jones with his fist and accusing him of trying to steal his car. Jones said that Pepe had brought him to steal Vidal's car. Appellant knew Pepe as someone who started trouble and stole from everyone. He had tried to break into appellant's house.

When appellant went into the garage in response to Vidal's summons, Jones was "[p]retty bad," although he "wasn't that bad" at this time. He was tied up with some orange extension cord. Vidal told appellant and Zavala to go get some black plastic, appellant guessed to do something with Jones. [N.8] Vidal was "crazy that night, he went wacko." Jones was "[b]ad," as he was still being beaten off and on by Portugal and Vidal, although all his clothes were still on. Vidal, who was "psycho," was responsible for making Jones "all swelled up."

[N.8] Appellant laughingly stated that he did not know what Vidal was going to do, "make a burrito out of him or ... wrap his ass up...."

Appellant never went and got the plastic, but instead he and Zavala went to appellant's house. They were there about five minutes, then appellant saw the butcher from Jiminez Market walking by and gave him a ride to his home on the other side of town. After dropping him off, appellant and Zavala returned to the Soto residence. They went into the garage, and appellant announced that he had not gotten the plastic. Jones now had something blue over his head that looked like a pillowcase. He was just lying there, still tied with the extension cord and still clothed. His hands were tied to his feet behind his back. At some point, appellant heard him say that it hurt, and to loosen it.

Appellant remained in the garage for five or 10 minutes. He felt that he was in a position where, if he interfered, he would be shot. Ebaniz was in the garage. Vidal tried to scare him by calling him in to watch what was going on. Jones was still on the ground. Everyone continued to beat him, off and on, and pointed the gun at him. About this time, they plugged in a wire and shocked him. They used an extension wire that had been cut, and one of them put the wire on Jones's fingers and tortured him. When the wire was plugged in, Jones's body would shake and he would moan. Vidal told Jones that today he was going to die and that he was going to make the papers. Vidal told Ebaniz that Jones was saving his grandmother's life. Appellant assumed he meant he had been going to kill Jones's grandmother if he could not get to Jones. Vidal was trying to scare Ebaniz so that Ebaniz would not say anything. Everyone took turns plugging in the wire. Vidal even made Ebaniz plug it in one time so he would be a part of it. No one did that to appellant.

Appellant took Ebaniz back into the house. Zavala was also there. At some point, Juan Soto was called into the garage and told to go get some beer with Zavala. The two men left. Appellant tried to keep Ebaniz in the house as much as possible, but Vidal kept calling Ebaniz back.

Juan Soto and Zavala were gone for about 30 minutes. During that time, appellant went outside and stood on the front porch for about 10 minutes, to look at his car and make sure nobody messed with it. He went back inside when Zavala and Juan Soto returned with a 24-pack of Bud light cans. They went into the house and then back into the garage, but appellant remained in the living room with Ebaniz.

After about 10 minutes, Vidal called them both back into the garage. The hood was off Jones's head; he looked "all fucked up" and was "all swelled up" and, although he was conscious, his eyes were closed. He was "pretty bad" and seemed to be in a lot of pain. He would moan when they kicked him. Portugal still kicked him a lot, and appellant saw Vidal strike him once on the back with the butt of the AK-47. They were still "talking shit" to him, and Vidal asked him if he wanted an open casket. Vidal was "siked [sic] out" and nobody wanted to say anything to him.

Appellant had tape at his house, and they told him to go get it, so he left again.

[N.9] When appellant went back into the garage, Portugal and Vidal were removing the extension cord because of fingerprints. Zavala and Juan Soto were inside the house at this point. Vidal told Ebaniz that he wanted to cut off Jones's ear and put it on Pepe's car. They cut off Jones's clothing with a box cutter, then Vidal made Ebaniz start taping Jones's legs. When he was too slow, Portugal took the duct tape away from him and started doing it faster. The whole time, Gerardo Soto was holding the AK-47 on Jones so he would not run.

[N.9] There was some uncertainty about how many times and when, during the course of events, appellant left the Soto residence. When Skiles and appellant were discussing what occurred within a short time after appellant's initial arrival there and Skiles asked how long appellant stayed in the house, appellant replied that he left a couple of times, went back home, and then gave the Jiminez Market butcher a ride home. This occurred when Vidal told appellant and Zavala to get some black plastic. When Zavala and appellant returned, Jones was still tied with extension cords and still clothed. Later, when discussing how the extension cords were changed for duct tape, appellant first said they had the tape there, then said no, he had tape at his house and they told him to go get it, so he left again. Apparently, however, the audiotape stopped working and was changed, after which Skiles announced that appellant had reminded him that appellant brought back duct tape the first time he left and went home at Vidal's direction, as Vidal had known appellant had a roll of duct tape at his house. Appellant agreed with this statement. Lupe Gonzalez testified that appellant left the house several times that evening. The first time was around 7:00 or 8:00 p.m. Although Chinese food had been ordered for dinner, it had not yet arrived when appellant left. While Gonzalez expected appellant back shortly, she ended up going to bed before he returned. The first time he returned, she heard him in the kitchen and assumed, since she heard dishes, that he was getting himself something to eat. He then left again and returned. This time, he went to bed.

Portugal taped up Jones's legs, then Jones was told to get on his stomach. Jones rolled over on his own, and Portugal taped his hands. Jones's hands were then taped to his feet. The participants were wearing white cotton gloves.

While Jones was on his stomach, Vidal started looking around the garage and found something that looked like a broom stick. He put some kind of motor oil or transmission oil on it, then inserted it in Jones's anus. Jones was moaning. Vidal said, " 'See, you fucked me now I'm fucking you.' " Vidal pushed the stick in and moved it in and out, and he also made Ebaniz do it. Ebaniz, who was afraid, just touched the stick and then threw up and went back inside the house.

Portugal and Gerardo Soto remained in the garage, while Vidal, appellant, Ebaniz, and Zavala came inside the house for about 15 minutes. Vidal was doing something with the gun he had and was cleaning the bullets. [N.10] Appellant was in and out, between the house and the garage. When they were about to leave, they taped Jones's mouth and then his eyes, then tried to cover his head with a plastic bag. [N.11] Appellant saw that Jones was gasping for air, so he walked away. When Vidal called to everyone to come on, Portugal and Gerardo Soto threw Jones into the trunk of Gerardo Soto's green car, which was in the garage. Appellant saw that "Pepe's bitch" had been written on Jones's back in blue. Appellant did not see it written, but Vidal was laughing and saying to look at what he had made Ebaniz do.

[N.10] Although this was the first time appellant had seen Vidal with his nine-millimeter that night, appellant was aware Vidal carried the gun all the time. He knew Vidal had the gun when he first took Vidal to the Soto house.

[N.11] Because appellant initially omitted the sexual assault, the chronology of events during this time period is somewhat unclear. Appellant first said Jones's head was taped and then he was left lying, naked, for a while. Everyone but Portugal and Gerardo Soto came inside, and Vidal did something with his gun. Later, however, appellant said the sexual assault occurred before Jones's head was taped up, and that he thought Jones's head was taped when everyone was about to leave. Appellant estimated that he and Vidal arrived at the house at 7:00 p.m., and were there until 10:30 or 11:00 that night.

Appellant went outside, then the garage door opened and Vidal, Gerardo Soto, and Portugal left in Gerardo Soto's green car. Gerardo Soto was driving. They wanted Ebaniz to go with them, but appellant took him instead, along with Zavala. Vidal told appellant to follow them, which he did because he knew Vidal would be angry if he did not.

They proceeded down Highway 43. Appellant momentarily lost the other vehicle when it made a U-turn, but then he saw it parked with its lights off. The trunk was "popped" from inside the car, then Vidal, Gerardo Soto, and Portugal picked Jones up and threw him out on the side of the road. Appellant, Zavala, and Ebaniz remained in appellant's car. Vidal wanted Ebaniz to see what was happening, which was why he made appellant follow him. [N.12] It was very dark, but appellant heard gunshots and saw Vidal firing. Appellant did not know how many times Vidal fired, but when he saw Vidal afterwards, Vidal said the clip was empty and the gun cocked back. If Vidal emptied the clip, he had to have fired nine or 10 rounds. Vidal said the first bullet he used had a hollow point.

[N.12] When Skiles asked whether Vidal told appellant that he wanted Ebaniz to see it, appellant responded, "Well yeah. He wanted us to stay in the car, you know ... I guess hear the bullet." Skiles again asked, "He told you that?" Appellant responded, "Oh yeah. He wanted him to see that shit." When Skiles then asked when Vidal told appellant that, appellant replied, "He didn't tell me that, but I'm just saying that's what it was. Yeah. So he wouldn't snitch. That's the reason why." Afterwards, everyone drove off. Appellant took Ebaniz to appellant's house, but then Vidal wanted Ebaniz to return to the Soto residence, so appellant took him back. Vidal told Ebaniz that Ebaniz belonged to him now and was going to stay with him, and he later told appellant that he kept Ebaniz for two days.

Vidal was always calling Ebaniz to watch what was going on, to try to scare him. He would say something like he would do it to Ebaniz. The day appellant gave his statement to Skiles, Vidal had told appellant he thought about doing it to Ebaniz. Ebaniz apparently had been picked up for questioning, however, and Vidal said he wanted to find Ebaniz's sister and family so he could come after Ebaniz. Vidal wanted to kill everyone and said he would kill Ebaniz's family in return for Ebaniz snitching on him.

(Ex. A, to Answer, [People v. Seriales, 2007 WL 3208541 (Cal. App. 2007)] at *1-*6.)

DISCUSSION

I. Motion for Stay and Abeyance

On October 12, 2011, Petitioner filed a motion tor stay and abeyance. He seeks a stay based on a claim that he recently discovered the California Supreme Court's July 2007 decision in cohort Jorge Vidal's appellate proceedings. He claims that he was not able to fully present a duress defense at his trial because he was unaware of his cohort Vidal's retardation and mental illness. Petitioner also contends his equal protection rights were violated based on the fact that cohort Gerardo Zavala was convicted of second degree murder after Petitioner was convicted of first degree murder based allegedly on similar evidence. Petitioner requests the Court stay and hold the petition in abeyance while he exhausts theses claims in the state courts.

A district court has discretion to stay a petition which it may validly consider on the merits. Rhines v. Weber, 544 U.S. 269, 276 (2005); Calderon v. United States Dist. Court (Taylor), 134 F.3d 981, 987-88 (9th Cir. 1998); Greenawalt v. Stewart, 105 F.3d 1268, 1274 (9th Cir.), cert. denied, 519 U.S. 1102 (1997). However, the Supreme Court held that this discretion is circumscribed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

Rhines, 544 U.S. at 277. In light of AEDPA's objectives, "stay and abeyance [is] available only in limited circumstances" and "is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court." Id. Even if Petitioner were to demonstrate good cause for that failure, "the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless." Id.

In this case, the Court does not find good cause to excuse Petitioner's failure to exhaust either of these claims. Petitioner was convicted by the jury on July 21, 2005. Before Petitioner's case proceeded to judgment, the California Supreme Court held hearings in 2003 and 2004 in Jorge Vidal's case. In a March 15, 2004, order, the state court ruled the death penalty was precluded as to Vidal because he had proved himself to be mentally retarded. People v. Superior Court, 21 Cal.Rptr.3d 542, 547 (Cal.App. 2004) (Vidal I). On December 6, 2004, the California Court of Appeal set aside the Superior Court order. The California Supreme Court granted review and transferred the case back to the California Court of Appeal in light of In re Hawthrone, 35 Cal.4th 40 (2005). See People v. Superior Court, 28 Cal.Rptr.3d 529, 537 (Cal.App. 2005) (Vidal II). On May 13, 2005, the California Court of Appeal again reversed the Superior Court. The California Supreme Court granted review again on July 27, 2005. 32 Cal.Rptr.3d 4. The following month, Petitioner was sentenced by the Superior Court on August 15, 2005.

Cohort George Zavala was found guilty of second degree murder, among other things, on October 24, 2006, and was sentenced on November 21, 2006. See People v. Zavala, 168 Cal.App.4th 772 (2008). While Petitioner's case proceeded on direct appeal, cohort Vidal's case proceeded to decision, as the California Supreme Court issued a decision on April 12, 2007 affirmed the Superior Court order in part, and remanding to the California Court of Appeal for further proceedings. People v. Superior Court (Vidal), 40 Cal.4th 999, 1015 (2007) (Vidal III). On November 1, 2007, more than five months later, the California Court of Appeal affirmed Petitioner's conviction on direct appeal.

On February 23, 2009, Petitioner filed the instant federal petition for writ of habeas corpus. After Respondent's request and notification of a response pending in the California Supreme Court, this Court on January 26, 2010, vacated the current briefing schedule in light of a pending California Supreme Court ruling on the habeas corpus petition.

On February 3, 2010, Petitioner filed a first amended petition. On May 18, 2010, Respondent filed an answer. On June 9, 2010, Petitioner filed a traverse. Petitioner has made no showing why ordinary diligence would not have alerted him there was ongoing litigation regarding cohort Vidal during the relevant time frame, i.e. before Petitioner was sentenced, and while his direct appeal pended. Further, the California Supreme Court issued its April 2007 decision in Vidal's case.

Nor does Petitioner demonstrate why ordinary diligence would not have alerted him to the fact that cohort Gerardo Zavala was convicted of second degree murder in November 2006, nearly a year prior to Petitioner's conviction being affirmed by the appellate court. Thus, Petitioner has not been diligent but rather dilatory. Under the best case scenario, Petitioner may be seeking a stay under King v. Ryan, 564 F.3d 1133 (9th Cir. 2009). In King, a three-step procedure was developed for mixed petition allowing:

(1) a petition to amend his petition to delete any unexhausted claims; (2) the court in its discretion to stay and hold in abeyance the amended, fully exhausted petition, providing the petitioner the opportunity to proceed to state court to exhaust the deleted claims; and (3) once the claims have been exhausted in state court, the petitioner to return to federal court and amends his federal petition to include the newly-exhausted claims.

King, 564 F.3d at 1139.*fn2

The Court finds that even a stay under King is futile because the claims are untimely. In King, the Ninth Circuit noted that the stay procedure is not a license to sanction "abuse" by litigants. King, 564 F.3d at 1141. Here, Petitioner committed "abuse" by being dilatory in waiting thirty-two months after the instant petition was filed to attempt to even commence proceedings on these claims, when the time to bring such claims (if ever) was fourteen months (Zavala claim) and nineteen months (Vidal claim) prior to filing the instant petition. In addition, this case is fully briefed and has been pending a decision on the merits since June 9, 2010. Thus, even under King, the motion to stay must be denied.

Moreover, Petitioner's claims are untimely under AEDPA's claim-based limitation period, 28 U.S.C. § 2244(d)(1)(D). "Time [under § 2244(d)(1)(D)] begins when the prisoner knows (or through diligence could discover) the important facts, not when the prisoner recognizes their legal significance." Owens v. Boyd, 234 F.3d 356, 359 (7th Cir. 2000); see also Hasan v. Galaza, 254 F.3d 1150, 1154 n. 3 (9th Cir. 2001). Petitioner was constructively notified of the California Supreme Court's decision in the Vidal case by the fact it was published in 2007.

Petitioner was also constructively notified of the decision in Gerardo Zavala's case by the fact that he was convicted in October 2006 and sentenced in November 2006. Petitioner does not indicate that he raised any related claims in the state court as of November 2007 and July 2008, and the claims lapsed as of those times. Thus, irrespective of a stay, the claims could not be presented in this Court.

II. 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 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged conviction arises out of the Tulare 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, 327 (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(1997). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.

III. Standard of Review

The instant petition is reviewed under the provisions of the Antiterrorism and Effective Death Penalty Act which became effective on April 24, 1996. Lockyer v. Andrade, 538 U.S. 63, 70 (2003). Under the AEDPA, relitigation of any claim adjudicated on the merits in state court is barred unless a petitioner 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); Harrington v. Richter, __ U.S. __, __, 131 S.Ct 770, 784, 178 L.Ed.2d 624 (2011); Lockyer, 538 U.S. at 70-71; Williams, 529 U.S. at 413.

As a threshold matter, this Court must "first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer, 538 U.S. at 71, quoting 28 U.S.C. § 2254(d)(1). In ascertaining what is "clearly established Federal law," this Court must look to the "holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams, 592 U.S. at 412. "In other words, 'clearly established Federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Id. In addition, the Supreme Court decision must "'squarely address [] the issue in th[e] case' or establish a legal principle that 'clearly extend[s]' to a new context to the extent required by the Supreme Court in . . . recent decisions"; otherwise, there is no clearly established Federal law for purposes of review under AEDPA. Moses v. Payne, 555 F.3d 742, 754 (9th Cir.2009), quoting Wright v. Van Patten, 552 U.S. 120, 125 (2008); see Panetti v. Quarterman, 551 U.S. 930 (2007); Carey v. Musladin, 549 U.S. 70 (2006). If no clearly established Federal law exists, the inquiry is at an end and the Court must defer to the state court's decision. Carey, 549 U.S. 70; Wright, 552 U.S. at 126; Moses, 555 F.3d at 760.

If the Court determines there is governing clearly established Federal law, the Court must then consider whether the state court's decision was "contrary to, or involved an unreasonable application of," [the] clearly established Federal law." Lockyer, 538 U.S. at 72, quoting 28 U.S.C. § 2254(d)(1). "Under the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-13; see also Lockyer, 538 U.S. at 72. "The word 'contrary' is commonly understood to mean 'diametrically different,' 'opposite in character or nature,' or 'mutually opposed.'" Williams, 529 U.S. at 405, quoting Webster's Third New International Dictionary 495 (1976). "A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases." Id. If the state court decision is "contrary to" clearly established Supreme Court precedent, the state decision is reviewed under the pre- AEDPA de novo standard. Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir.2008) (en banc).

"Under the 'reasonable application clause,' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 413.

"[A] federal court may not issue the writ simply because the 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 411; see also Lockyer, 538 U.S. at 75-76. The writ may issue only "where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme Court's] precedents." Harrington, 131 S.Ct. at 784. In other words, so long as fairminded jurists could disagree on the correctness of the state courts decision, the decision cannot be considered unreasonable. Id. If the Court determines that the state court decision is objectively unreasonable, and the error is not structural, habeas relief is nonetheless unavailable unless the error had a substantial and injurious effect on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).

Petitioner has the burden of establishing that the decision of the state court is contrary to or involved an unreasonable application of United States Supreme Court precedent. Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). Although only Supreme Court law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a state court decision is objectively unreasonable. See LaJoie v. Thompson, 217 F.3d 663, 669 (9th Cir.2000); Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir.1999). AEDPA requires considerable deference to the state courts. "[R]review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits," and "evidence introduced in federal court has no bearing on 2254(d)(1) review." Cullen v. Pinholster, 131 S.Ct. 1388, 1398-99. "Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003), citing 28 U.S.C. § 2254(e)(1). However, a state court factual finding is not entitled to deference if the relevant state court record is unavailable for the federal court to review. Townsend v. Sain, 372 U.S. 293, 319 (1963), overruled by, Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992).

IV. Miranda Violation/Motion to Introduce Copy of "CD"

Petitioner contends the trial court erred by admitting his statement into evidence at trial because he did not unequivocally waive his rights under Miranda v. Arizona, 384 U.S. 436 (1966), rendering the statement involuntary.

Petitioner has submitted a "CD" recording which he represents is a copy of the reading of his Miranda rights received by his appellate counsel. Respondent was not served with a copy of the "CD" nor does Respondent have such a copy. Respondent has submitted an analog recording which he represents was the basis of the state appellate court's finding on the Miranda issue. In Cullen v. Pinholster, __ U.S. __, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011), the Supreme Court held that in determining the reasonableness of a state court's ruling under § 2254(d)(1), federal courts are "limited to the record that was before the state court that adjudicated the claim on the merits." 131 S.Ct. at 1398. Thus, for purposes of a § 2254(d)(1) inquiry, "evidence later introduced in federal court is irrelevant." Id. at 1400. Likewise, based on the plain language in the statute, review under § 2254(d)(2) is limited to "evidence presented in the State court proceeding." Id. at 1400 n. 7.

Petitioner appears to argue that the "CD" recording of the conversation in which his Miranda rights were recorded is superior than that contained on the audio cassette. However, the mere submission of the "CD" recording of the same conversation recorded on audio cassette tape does not change the state of the evidence that was before the state court of which this Court is bound to review. In addition, the clarity of the tape recording was not at issue before the state appellate court and it was played to the jury at trial. Accordingly, this Court is limited to reviewing the state of the evidence that was before the state court and Petitioner's motion must be denied.

In the last reasoned decision, the California Court of Appeal found Petitioner's Miranda claim to without merit, stating:

A. Background

It is undisputed that Sergeant Skiles read appellant his Miranda rights, and elicited from appellant that he understood each right, prior to questioning. According to the transcript of the tape-recorded statement, this ensued:

"Det. R. Skiles: Now with those rights in mind do you want to talk to me about this investigation?

"Keith Seriales: Mmm, I don't know.

"Det. R. Skiles: It's, it's up to you I can ask you the questions but I need an answer from you before I can ask you anything, I need you to answer. I realize there's more people involved in this deal. We have a lot of evidence here and that's why we're at your house and it's, it's up to if [sic] you're gonna take this opportunity or not.

"Keith Seriales: (unintell)

"Det. R. Skiles: (unintell)

"Keith Seriales: There's nothing you can do for me (unintell)

"Det. R. Skiles: Well I, I've told you on the way over here I would, I would make no promises to you, I, I'm not gonna lie to you and the only person that can help you right now is, is you. Uhm I don't, I myself don't know your exact involvement in this case. I mean I, I know part of it but I ...


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