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Pablo v. Bitter

United States District Court, N.D. California

May 12, 2014

SERGIO PABLO, Petitioner,
MARTIN BITTER, Warden, Respondent.


EDWARD M. CHEN, District Judge.


Sergio Pablo, a state prisoner at Calipatria State Prison, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his 2009 conviction for robbery and carjacking. The petition is now ready for a decision on the merits. For the reasons discussed below, the petition is denied.


A. The Crimes

The California Court of Appeal summarized the evidence of the crimes presented at a joint trial of Pablo and co-defendants Jorge Rico and Cesar Valle:

On the evening of September 14, 2007, [victim] Gerardo was driving with his friends, [victims] Salvador, Miguel, and Juan. FN3 At about 9:20 p.m., Gerardo drove his burgundy Honda Accord into the parking lot of a night club called Mariano's. While his friends remained in the car, Gerardo approached Catherine Brown to talk to her. FN4 Juan then got in the driver's seat because the club was in an "ugly" neighborhood. Shortly thereafter, two men entered the back seat. One of them pulled out a gun, pointed it at Juan's head, and told him to drive. He also told the three men to give them their money or they would kill them. Juan handed them his wallet, and one of the men took about $600 in cash out of the wallet and threw the wallet on the ground. Salvador gave them more than $1, 000 in cash and a check. The check, which was made out to Samuel Vega, was for $400. Miguel, who was sitting in the front passenger seat, put his wallet containing $150 under the seat. The men directed Juan to drive to a nearby park, where they told the victims to get out. The three victims ran back to Mariano's.
FN3. Gerardo, Salvador, Miguel, and Juan were identified only by their first names. Juan did not testify.
FN4. Brown admitted that she had prior convictions for prostitution and possession of drugs for sale.
When Gerardo saw that his car was leaving, he called 911 to report that it had been stolen. Someone then grabbed his cell phone and hopped in a black Buick Rendezvous SUV. Brown heard someone saying "give us your wallets" in Spanish. She also saw two men from the black SUV, which had a dealer plate with a star on it, get into the Honda. When the Honda drove off, the SUV followed. Brown called 911 and tried to follow the Honda. However, she lost them within a block.
Sergeant Mark Lazzarini and his partner Officer Chris Balaoro responded to the broadcast of a stolen maroon Honda Accord at Mariano's. They had also been informed that the robbers were associated with a small, black SUV with a gold emblem or star. As Sergeant Lazzarini and Officer Balaoro drove towards the club, they saw a maroon Honda Accord and a small, black SUV, a Buick Rendezvous, which had a dealer license plate with a gold star. They followed the vehicles as they turned into the La Posada Apartment complex. La Posada Trece, a Sureno gang, originated in this complex.
Sergeant Lazzarini activated the lights on his patrol car, and the Honda pulled into a parking space. However, since the SUV accelerated to go south, Sergeant Lazzarini broadcast that it was fleeing. As Sergeant Lazzarini approached the Honda, Valle exited the vehicle. When he realized that Sergeant Lazzarini was a police officer, he took off running toward the area where the SUV had gone. Valle was wearing a black T-shirt with a picture of Bob Marley's face on it, gray shorts or pants, and brown gloves. Sergeant Lazzarini began chasing him.
When Sergeant Lazzarini rounded a corner, he saw Valle running towards the SUV. At that point, Pablo, who was wearing a light-colored T-shirt, exited the SUV, went into the trash enclosure of the apartment complex, and exited "a second" later. Pablo was then joined by Valle, and they both ran out of the apartment complex as Sergeant Lazzarini called for backup.
Meanwhile, the SUV had pulled into a parking spot. Sergeant Lazzarini told the occupants to show their hands, and three people exited the vehicle. Rico was the driver of the SUV, Quiroz was the right front passenger, and Alejandro Cisneros was the left rear passenger. After the men were arrested, $110 and a paycheck, which was made out to Samuel Vega, were found near the bumper of the SUV where Sergeant Lazzarini had seen one of the men appear to be setting something down. Officers found $1, 200 in cash in the rear compartment of SUV. Sergeant Lazzarini also found a semiautomatic handgun in a dumpster in the trash enclosure into which Pablo had gone briefly. There was a wallet under the right front passenger seat of the SUV, and Quiroz had two $100 bills in his pocket.
Officers Omar Pena and Ian Parsons detained Valle and Pablo in a nearby field. Valle was no longer wearing brown gloves, which were found on the path that he had taken. After searching the Honda, police found Miguel's wallet under the front passenger seat and over $400 in cash was found on the driver's seat.

People v. Rico, 2011 WL 5910073 at *1-2 (Cal.App. 6 Dist. 2011); Ex. 8.[1]

B. Procedural History

At a joint jury trial in Monterey County Superior Court, Pablo was found guilty of multiple counts of kidnaping for robbery, kidnaping to facilitate carjacking, carjacking, second degree robbery and participation in a criminal street gang. Clerk's Transcript ("CT") at 905.1-905.29. It was also found that Pablo was armed with a firearm and committed the crimes for the benefit of a criminal street gang. Id. He was sentenced to 25 years to life in prison. CT at 1075.10-1075.15.

On November 28, 2011, the California Court of Appeal affirmed the judgment of conviction, but modified the sentence to an indeterminate term of life in prison and a determinate term of ten years for the enhancements and modified the judgment to reflect certain custody credits. People v. Rico, 2011 WL 5910073 at *26-28; Ex. 8. The California Supreme Court summarily denied Pablo's petition for review. Ex. 11. Pablo then filed this federal petition for writ of habeas corpus. The Court issued an order to show cause why the petition should not be granted. Respondent has filed an answer and Pablo filed a traverse.[2] The matter is ready for a decision on the merits.


This Court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") amended § 2254 to impose new restrictions on federal habeas review. A petition may not be granted with respect to any claim that was adjudicated on the merits in state court 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).

"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 Supreme] Court has on a set of materially indistinguishable facts." Williams (Terry) v. Taylor, 529 U.S. 362, 412-13 (2000).

"Under the unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decision but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[A] federal habeas court may not issue the writ simply because that 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. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409.

The standard of review under AEDPA is somewhat different where the state court gives no reasoned explanation of its decision on a petitioner's federal claim and there is no reasoned lower court decision on the claim. In such a case, a review of the record is the only means of deciding whether the state court's decision was objectively reasonable. Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000). When confronted with such a decision, a federal court should conduct an independent review of the record to determine whether the ...

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