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Calixto C. Racimo v. Michael Martel*Fn1

May 3, 2012

CALIXTO C. RACIMO, PETITIONER,
v.
MICHAEL MARTEL*FN1 ,
RESPONDENT.



The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge

ORDER AND FINDINGS & RECOMMENDATIONS

I. Introduction

Petitioner, a state prisoner proceeding pro se, has filed a petition pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2008 conviction for second degree murder with a firearm enhancement. He is serving a state prison term of sixteen years to life. This action proceeds on the First Amended Petition filed on January 31, 2011. (Dkt. No. 7 ("Pet.").) Petitioner claims that his conviction must be reversed because (1) it was based on the testimony of an accomplice, which was not sufficiently corroborated; (2) the case was presented to the jury on three alternate theories, two of which were incorrect; (3) evidence of petitioner's prior bad acts was improperly admitted, in violation of his federal due process rights; and (4) the prosecutor withheld exculpatory evidence from the defense, rendering the trial fundamentally unfair. (Pet. at 16-48.) Also pending is petitioner's request for an evidentiary hearing on Claim (4), to which respondent has filed an opposition. (Dkt. Nos. 27, 28.)

Upon careful consideration of the moving papers and the record, the undersigned concludes that petitioner's claims for relief and motion for evidentiary hearing should be denied.

II. AEDPA

The statutory limitations of federal courts' power to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The text of § 2254(d) states:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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.

As a preliminary matter, the Supreme Court has recently held and reconfirmed "that § 2254(d) does not require a state court to give reasons before its decision can be deemed to have been 'adjudicated on the merits.'" Harrington v. Richter, 131 S.Ct. 770, 785 (2011). Rather, "when a federal claim has been presented to a state court 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." Id. at 784-785, citing Harris v. Reed, 489 U.S. 255, 265 (1989) (presumption of a merits determination when it is unclear whether a decision appearing to rest on federal grounds was decided on another basis). "The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely." Id. at 785.

The Supreme Court has set forth the operative standard for federal habeas review of state court decisions under AEDPA as follows: "For purposes of § 2254(d)(1), 'an unreasonable application of federal law is different from an incorrect application of federal law.'" Harrington, supra, 131 S.Ct. at 785, citing Williams v. Taylor, 529 U.S. 362 (2000). "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." Id. at 786, citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). Accordingly, "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. "Evaluating 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.'" Id. Emphasizing the stringency of this standard, which "stops short of imposing a complete bar of federal court relitigation of claims already rejected in state court proceedings[,]" the Supreme Court has cautioned that "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id., citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003).

The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Viscotti, 537 U.S. 19, 123 S. Ct. 357 (2002). Specifically, the petitioner "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." Harrington, supra, 131 S.Ct. at 786-787. "Clearly established" law is law that has been "squarely addressed" by the United States Supreme Court. Wright v. Van Patten, 552 U.S. 120, 125 (2008). Thus, extrapolations of settled law to unique situations will not qualify as clearly established. See e.g., Carey v. Musladin, 549 U.S. 70, 76 (2006) (established law not permitting state sponsored practices to inject bias into a criminal proceeding by compelling a defendant to wear prison clothing or by unnecessary showing of uniformed guards does not qualify as clearly established law when spectators' conduct is the alleged cause of bias injection). The established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer, 537 U.S. 3, 9 (2002).

The state courts need not have cited to federal authority, or even have indicated awareness of federal authority in arriving at their decision. Early, supra, 537 U.S. at 8. Where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. "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).

Finally, if the state courts have not adjudicated the merits of the federal issue, no AEDPA deference is given; the issue is reviewed de novo under general principles of federal law. James v. Ryan, __ F.3d __, 2012 WL 639292 *18-19 (9th Cir. 2012).

III. Background

A. Facts

In its unpublished memorandum and order affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary of petitioner's offense and conviction:

A jury convicted defendant Calixto Cada Racimo of second degree murder and found that he or a coprincipal was armed with a firearm in the offense. (Pen.Code, §§ 187, subd. (a), 189, 12022, subd. (a)(1).) . . .

FACTUAL AND PROCEDURAL BACKGROUND

The discovery and autopsy of the body

On August 24, 2002, the body of Christopher Pearson, which had a cement-filled backpack strapped to it, was found floating face down in a slough near Clarksburg. The condition of Pearson's body was consistent with it having been in the water since August 3 or 4, 2002, when Pearson was last seen alive.

Pearson had been shot five times: four copper-washed .22-caliber long bullets to the chest, which caused his death, and one .38-caliber or 9-millimeter bullet to the buttocks. The bullets could not be linked to specific guns, because their fine markings had saturated away.

The methamphetamine-for-guns swap-accomplice testimony The trial court instructed the jury that, if it found that a murder was committed, John Rodricks was an accomplice as a matter of law. Rodricks testified as follows (supplemented as indicated by Damon Shakibai, whose status as a murder accomplice was left to the jury. The victim here, Pearson, and two others -- Shakibai and Hoang Nguyen (aka "Moochie") -- hatched a scheme in July 2002 whereby they would bring pure "ice" methamphetamine from Los Angeles to Sacramento and swap it for guns, which they would then sell in southern California. Rodricks came in on the tail end of this plan. Pearson's role was to obtain the methamphetamine; Nguyen's was to swap it for the guns; and Shakibai's was to sell the guns. Pearson obtained a brick-sized amount of pure methamphetamine (on credit, Shakibai testified). Pearson and Rodricks drove with it to Sacramento in Pearson's Ford Probe. There they met Nguyen and defendant.

Nguyen, defendant and Pearson went to obtain the guns. This endeavor proved fruitless. No one was willing to trade guns for the methamphetamine "straight up." (According to Shakibai, Nguyen had told him that a "crate" of nine or 10 new 9-millimeter pistols would be swapped.)

Pearson then came up with a new plan: The methamphetamine would be left with Nguyen who would cut it to create more product and thus more profit; this would allow them to purchase the guns. In a good faith gesture, Pearson and Rodricks were given three or four guns as they parted for Los Angeles (according to Shakibai, these guns were a 9-millimeter semiautomatic pistol, a 12-gauge shotgun, a .357-caliber revolver, and a semiautomatic military rifle).

A few weeks of delay then ensued from Nguyen's end, and Pearson began to "freak[ ] out." (According to Shakibai, Pearson called Nguyen's parents telling them about their son's exploits and that he (Pearson) wanted his "bunch of ... methamphetamine" back. Nguyen was not pleased, and he threatened Pearson.)

Pearson and Rodricks then returned to Sacramento in the Ford Probe. They met up with Nguyen, who was driving a Nissan Maxima and who told Rodricks that "you shouldn't be here" because it was "his day [meaning Pearson's]." The three men drove to the home of Carolyn Backues, who was a friend of defendant's. Defendant was there.

Nguyen left the Backues's residence in the Ford Probe, purportedly to pick up the guns. Rodricks, Pearson and defendant later left the residence in the Maxima to meet up with Nguyen and the firearms. Rodricks drove pursuant to defendant's directions. All four of the men eventually met near a "river."

Rodricks parted company with the three others to go urinate on the embankment. As he was doing so, he heard a scuffle and then a shot. He looked up and saw Pearson's silver .380 automatic in Nguyen's hand. "[F]reaking out," Rodricks ran away and stayed down on the ground until he heard the Probe drive away. He then got in the Maxima and left. He texted Nguyen, who responded that Rodricks need not worry -- what had happened had nothing to do with him. Eventually, Nguyen, Rodricks and defendant rendezvoused and returned to the Backues's residence.

At the Backues's residence, Nguyen said that Pearson had disrespected him, and defendant said he (defendant) had "dumped the clip into" Pearson. Defendant described shooting Pearson "about five more times," physically demonstrating Pearson's body moving "back and forth" and saying it was like a movie.

Rodricks later looked in the Probe and saw a hand (Pearson's) sticking out of the hatchback. Rodricks also saw defendant drop a cinder block in the rear area of the car. Nguyen and defendant stated they planned to dump the body, defendant saying later they gave Pearson some "cement shoes." (Rodricks pleaded no contest to voluntary manslaughter and received a three-year state prison term, a term he had already served in presentence custody.)

Carolyn Backues's and Charles Speaks's testimony Carolyn Backues was a friend of defendant's, and he was almost "always" at her house. Around the time of her birthday in 2002 (August 4), defendant was at her place, along with Nguyen, Rodricks and Pearson. The next morning, after discovering to her dismay that Rodricks was still there (having spent the night), she asked defendant where the other one was (i.e., Pearson). Defendant replied that he had gone fishing, or was on vacation. Backues also overheard defendant and Rodricks talking about bloodstains in a car. Backues's boyfriend, Charles Speaks, at trial confirmed seeing defendant at the house with Nguyen, Pearson and Rodricks. Physical evidence Pearson's cell phone records showed that his phone had made calls to two phones that ...


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