FINDINGS AND RECOMMENDATION TO DENY FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS (Doc. 46)
ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN 21 DAYS
JENNIFER L. THURSTON, Magistrate Judge.
Petitioner Clemente Villegas Barrera is a state prisoner proceeding in propria persona with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner is in the custody of the California Department of Corrections and Rehabilitation. On March 17, 2004, a jury convicted Petitioner of one count of premeditated attempted murder, two counts of assault with a firearm, one count of shooting at an occupied motor vehicle, one count of possession of a firearm by a felon and one count of brandishing a firearm at a person in a motor vehicle. (Lodged Document ("LD") 3). For these convictions, Petitioner was sentenced to life with the possibility of parole for the first count and this sentence was enhanced by 20 years for the "weapons use and discharge allegations, " and he was sentenced to a term of three years for the assault with the firearm plus one year for the prior prison term and four years added for the firearm enhancement. (Doc. 46 1t 1-2) This term was ordered to be served consecutively to the other sentence. Id.
In this petition, Petitioner argues the trial court erred in imposing the consecutive sentences because this decision was based on facts not decided by the jury. He argues also was deprived of his right to the assistance of appellate counsel due to her failure to assert the ineffectiveness of trial counsel when she failed to object to the court instructing the jury using the "acquittal first" instruction set forth in CALJIC 17.10 related to lesser included offenses. For the reasons set forth below, the Court recommends the petition be DENIED.
The Court adopts the following Statement of Facts as contained in the Opinion of the 5th District Court of Appeal:
Ignacio Hernandez lived with Velia Barrera, appellant's estranged wife. On September 5, 2003, at 6:00 a.m. while Hernandez was driving to work, a white car pulled up along side of him on his left and the occupant motioned for him to stop. Hernandez partially opened his window. The other driver yelled through his open passenger window "[D]o you remember?" and fired two shots at Hernandez.
Hernandez estimated the distance between the shooter and himself to be four or five feet. Neither shot struck Hernandez, but his driver's side window and the windshield shattered. Hernandez recognized the driver's voice as belonging to appellant, whom he had met once and spoken to a number of times on the telephone. Appellant had told Hernandez in the past that Velia Barrera was his wife and she would never belong to anyone else.
Immediately after the shooting, Hernandez drove back to the house. Velia Barrera, who had heard the gunshots, was in front of the house. While Hernandez and Velia Barrera were outside, appellant drove up, shouted "[Velia Barrera] was his and no one else's, " and pointed his gun at both of them. Appellant left three or four minutes later without firing any shots.
It was stipulated for purposes of count 5, felon in possession of a firearm, that appellant had suffered a prior felony conviction. Defense
Appellant testified that when he discovered in March or April of 2003 that his wife was having an affair with Hernandez, he told her to go live with him. According to appellant, he paid the rent on the house where Hernandez and Velia Barrera were living and he bought for her the car that Hernandez was driving when the charged event occurred. Even though his wife was living with Hernandez, she and appellant saw each other frequently and he continued to be intimate with her. He denied making any threats toward Hernandez on the telephone and claimed no animosity toward him.
On the morning of the shooting, appellant was waiting for a call from Velia Barrera, who was going to meet him at a hotel room. She called him between 6:30 and 6:35 a.m. and told him to come and get her because Hernandez had left for the day. Appellant, driving a white car borrowed from a friend, drove to the house where he saw Hernandez and Velia Barrera fighting in the front yard. Appellant claimed they were struggling over a rifle or shotgun. When appellant yelled at them to stop, they did, and when Velia Barrera asked him to leave, he did. After he left, he called Velia Barrera every five to ten minutes to make sure she was okay. He claimed he took her to a hotel later that day.
Sometime before the shooting, Velia Barrera had asked him for money to fix the windshield of her car.
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, 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 n. 7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the United States Constitution. The challenged conviction arises out of the Fresno County Superior Court, which is located within the jurisdiction of this court. 28 U.S.C. § 2254(a); 28 U.S.C.§ 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 (1997), cert. denied, 522 U.S. 1008 , 118 S.Ct. 586 (1997); Jeffries v. Wood , 114 F.3d 1484, 1500 (9th Cir. 1997), cert. denied, 520 U.S. 1107 (1997), overruled on other grounds by Lindh v. Murphy , 521 U.S. 320 (holding the AEDPA only applicable to cases filed after ...