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Jose Martin Nogales v. Warden Mcdonald

May 10, 2012


The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

Order Rejecting Petitioner's Objections to Magistrate Judge's Report and Recommendation; Denying

Petition; Denying Motion for Evidentiary Hearing; Denying Motion for Appointment of Counsel; Granting Certificate of Appealability Petitioner Jose Martin Nogales, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his September 16, 2008 convictions for second degree murder and related charges in San Diego County Superior Court Case No. SCD208418. Petitioner makes only one claim in his petition -- that the evidence was insufficient to support his convictions for murder and shooting at an inhabited dwelling.

After full briefing, Magistrate Judge Barbara Major issued a report and recommendation ("R&R"), recommending that the Court deny Nogales' motions for appointment of counsel and for an evidentiary, and deny the petition. [Doc. No. 10.] Nogales has filed objections. [Doc. Nos. 16 and 17.] Following de novo review, for the reasons explained herein, the Court rejects Nogales' objections to the R&R, denies Nogales's motions for appointment of counsel and for an evidentiary hearing, and DENIES the petition.

Legal Standard

Magistrate Judge Major set forth the correct legal standard governing this Court's review of Nogales' habeas corpus petition. Under AEDPA, a habeas petition will not be granted with respect to any claim adjudicated on the merits by the state court unless the adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. 28 U.S.C. § 2254(d); Early v. Packer, 537 U.S. 3, 8 (2002). In deciding a state prisoner's habeas petition, a federal court is not called upon to decide whether it agrees with the state court's determination; rather, the court applies an extraordinarily deferential review, inquiring only whether the state court's decision was objectively unreasonable. Yarborough v. Gentry, 540 U.S. 1, 4 (2003); Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004).

Where a petitioner challenges, on due process grounds, the sufficiency of the evidence used to obtain a state conviction, he "faces a heavy burden." Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011).

When we assess a sufficiency of evidence challenge in the case of a state prisoner seeking federal habeas corpus relief subject to the strictures of AEDPA, there is a double dose of deference that can rarely be surmounted. The Jackson v. Virginia standard is itself deferential, as it only permits relief when "no rational trier of fact" could have found the elements necessary for guilt satisfied beyond a reasonable doubt. Jackson, 443 U.S. at 324. AEDPA adds a second level of deference, as it is not enough if we conclude that we would have found the evidence insufficient or that we think the state court made a mistake. Rather, the state court's application of the Jackson standard must be "objectively unreasonable" to warrant habeas relief for a state prisoner.

Id. at 964-65.

Motion for Evidentiary Hearing and for Appointment of Counsel

Nogales sought an evidentiary hearing "so that this Court can fully see and comprehend ... aspects of the case to its full potential." [Doc. No. 9, p. 3.] Magistrate Judge Major set forth the correct legal standard governing evidentiary hearings. In order to determine whether to grant an evidentiary hearing, the court must first "determine whether a factual basis exists in the record to support the petitioner's claim." Insyxiengmay v. Morgan, 403 F.3d 657, 669 (9th Cir. 2005) (citing Baja, 187 F.3d at 1078). If not, and an evidentiary hearing would otherwise be appropriate, the court must "ascertain whether the petitioner has 'failed to develop the factual basis of the claim in State court.'" Id. at 669-70. A failure to develop the factual basis of a claim in state court implies "some lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel." See Williams v. Taylor, 529 U.S. 420, 432 (2000). The Supreme Court has said that "[d]iligence will require in the usual case that the prisoner, at a minimum, seek an evidentiary hearing in state court in the manner prescribed by state law." Id. at 437.

In the present case, a sufficient factual basis exists in the trial transcripts and other records before the Court to resolve the merits of Nogales' claim. See Insyxiengmay, 403 F.3d at 669-70. In arguing there is insufficient evidence to support the convictions, Nogales cites to the state court record, identifying evidence he contends is contrary to the jury's finding of guilt. Nogales identifies no facts outside the record. Instead, he essentially asks this Court to make a de novo factual determination based upon the evidence presented in state court. Under these circumstances, the Court DENIES Nogales' motion for an evidentiary hearing.

Furthermore, Nogales has not demonstrated the need for appointment of counsel. The Sixth Amendment right to counsel does not extend to federal habeas corpus actions by state prisoners. McCleskey v. Zant, 499 U.S. 467, 495 (1991). However, financially eligible habeas petitioners seeking relief pursuant to 28 U.S.C. § 2254 may obtain representation whenever the court "determines that the 'interests of justice so require.'" 18 U.S.C. § 3006A(a)(2)(B); Terrovona v. Kincheloe, 912 F.2d 1176, 1181 (9th Cir. 1990). Unless the court conducts an evidentiary hearing on the petition, the appointment of counsel is discretionary. Terrovona, 912 F.2d at 1177. "Indigent state prisoners applying for habeas relief are not entitled to appointed counsel unless the circumstances of a particular case indicate that appointed counsel is necessary to prevent due process violations." Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986). Here, the legal claim is not particularly complex and Nogales has more than adequately presented the factual and legal bases for his claims. Because the claim of insufficiency of the evidence was also raised before the state courts, the Court can rely upon the transcripts and record of proceedings. Therefore, the Court DENIES Nogales' motion for appointment of counsel.

Factual and Procedural Background

The factual and procedural background of this matter is set forth in Magistrate Judge Major's R&R. The Court acknowledges Nogales' objections to the accuracy of the state court's findings of fact*fn1 , and will discuss the additional facts Nogales relies upon in the analysis of his claims below. However, the following facts from the California Court of Appeal's opinion present a background for the Court's analysis:

a. The June 22, 2007 Shootings

On June 22, 2007, Karina Lopez was in a car in an alley. Lopez saw four men in the alley, one of whom was yelling at a fifth man. According to Lopez, one of the men from the group of four struck the fifth man in the head with a bottle. Lopez ducked down in the car. Shortly thereafter, she heard two gunshots.

A second witness, Ivet Sandoval, identified Carrasco in court as having been present in the alley during the June 22 shootings. Sandoval also testified that she had previously identified Nogales from a series of photographs as having been present in the alley and having fled the scene with a black gun tucked in his waistband. Carrasco's DNA was discovered on a bottle found at the scene of the June 22 shootings. Cartridge cases that matched the gun used in the murders charged in counts 3 and 4 [the July 8, 2007 shootings] were found at the scene of the June 22 shootings.

b. The July 8, 2007 Shootings

Just after midnight on July 8, 2007, several members of the Perez family and their friends were standing outside the Perez home, talking. A white pickup truck passed slowly by the Perez residence, made a U-turn at a cross street, and slowly approached the Perez residence again. Inside the pickup truck were the driver and at least one passenger. As the truck approached the Perez residence, it began driving even more slowly. The driver's side of the truck was closest to the Perez residence. The driver of the truck shouted through his open window, "Paradise Hills. Paradise Hills. P.H.." The driver also asked, "Where you from?" The driver appeared to be attempting to start a fight. Frank Perez, who was standing close to the truck, angrily responded, "Get out of here." The ...

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