United States District Court, E.D. California
ORDER DENYING FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS (Doc. 14) ORDER DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND CLOSE FILE ORDER DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY
JENNIFER L. THURSTON, Magistrate Judge.
Petitioner is a state prisoner proceeding through counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The parties have previously filed their written consent to the jurisdiction of the Magistrate Judge for all purposes. (Docs. 19 & 20).
Petitioner is in custody of the California Department of Corrections and Rehabilitation after having been convicted in Kings County Superior Court in 2008 of: (1) gross vehicular manslaughter while intoxicated (Cal. Pen. Code § 191.5(a)); (2) driving under the influence of alcohol and causing bodily injury to another (Cal. Veh. Code § 23153(a)); (3) driving while having.08 percent or more, by weight, of alcohol in his blood and causing bodily injury to another (Cal. Veh. Code § 23153(b)); (4) failure to stop at the scene of an injury accident (Cal. Pen. Code § 20001(a)); and (5) driving with a license suspended or revoked for driving under the influence of a drug or alcohol (Cal. Pen. Code § 14601.2(a)). (Doc. 25, Lodged Documents ("LD") 1).
Petitioner appealed to the California Court of Appeals, Fifth Appellate District (the "5th DCA"), which affirmed Petitioner's conviction on February 19, 2009. (LD 1). Petitioner filed a petition for review in the California Supreme Court that was summarily denied on May 20, 2009. (LD 2).
On July 22, 2010, Petitioner filed a habeas corpus petition in the Kings County Superior Court, seeking to exhaust certain additional claims. This petition was denied on September 30, 2010. (LD 21; 22). Petitioner filed two subsequent state habeas petitions in the California Supreme Court, both of which were denied. (LD 23; 24).
On August 18, 2010, Petitioner filed the instant petition, raising six grounds for relief, and requesting a stay and abeyance until Petitioner could exhaust the unexhausted claims in the petition. (Doc. 1). On October 4, 2010, the Court granted Petitioner's request for a stay. (Doc. 5). On August 16, 2011, Petitioner notified the Court that all of his claims were fully exhausted. (Doc. 12). On September 21, 2011, Petitioner filed the instant first amended petition. (Doc. 14). On January 13, 2012, the Court ordered the stay lifted and directed Respondent to file a response to the first amended petition. (Doc. 15). On March 14, 2012, Respondent filed an Answer. (Doc. 24). Petitioner filed his Traverse on May 14, 2012. (Doc. 30). Respondent concedes that all grounds for relief in the petition have been fully exhausted. (Doc. 24, p. 8).
The Court adopts the Statement of Facts in the 5th DCA's unpublished decision:
At approximately 8:30 a.m. on August 19, 2005, a Lexus vehicle was observed traveling at a high rate of speed on a roadway in Hanford that ran alongside a canal. The driver was unable to negotiate the "S" curved road. The Lexus traversed the canal in a counter clockwise motion. Its front end impacted with the canal's east bank, followed by the passenger side. At some point, the vehicle overturned. It came to rest right side up on the sloped east canal bank. Witnesses called for emergency services and went to the scene to assist. Three people were in the Lexus when the accident occurred: appellant, Robert Barrios (Barrios) and Tony Jeff (Tony).
Allan McCain saw a cloud of dust and then noticed the Lexus on the canal bank. He reached the scene about five minutes after the accident. Tony was flailing in the canal trying to stand up and Barrios was floating face down in the water. McCain pulled Barrios's head out of the water and held onto him to make sure that he did not slide back into the water.
About three minutes later, McCain heard wrestling noises emanating from inside the Lexus and then heard a splash. He saw appellant coming from around the passenger side of the Lexus. Appellant had a big cut on his forehead and a bloody face. McCain asked appellant if he was okay. Appellant replied, "I have to go, I'm on parole." McCain said, "[Y]ou are hurt pretty bad, you need to stay." Appellant replied, "I'm on parole." McCain told appellant that it was "okay, it was just an accident. You are not going to be in trouble." Appellant kept repeating that he was on parole and he had to go. McCain asked appellant who was driving. Appellant said, "I was, but I got to go, I'm on parole." Appellant began to walk off. McCain asked appellant if he could at least help him pull Barrios fully out of the canal. Appellant did so. Then he told McCain to "take care of both of them and he had to go." Appellant "started stumbling off north bound along the east side of the canal." When police officers arrived, McCain told "them that another person was hurt really bad and he was walking this direction and he said he was the driver."
Highway Patrol officer Chris Maselli heard the radio broadcast stating that appellant had fled. Maselli decided to search for appellant. He noticed another officer standing near appellant. Maselli joined the officer. Appellant appeared angry and agitated. He flailed his arms, yelled and swore. Appellant shouted "for us to shoot him." Appellant was apprehended by the officers. He had a visible laceration across his forehead and his head and hair were covered in blood. Appellant's speech was slurred and "[h]e was going through mood swings, which is consistent with being under the influence." He had a "very strong [odor of alcohol] on his breath and person."
Appellant was taken to the hospital, where he gave a statement to Maselli. Appellant "[s]tated that he was walking down the canal bank, did a suicide 360 and fell down and when he fell down, he hit his head, stated he was not in the collision." Appellant said he was injured by falling onto the dirt canal bank and "claimed he was never in any kind of collision."
Maselli performed two breathalyzer tests on appellant. The results showed blood alcohol concentration levels of.185 percent and.182 percent. A blood sample was taken from appellant, tested and found to have a blood alcohol concentration level of.19 percent.
Barrios died at the hospital. The cause of death was respiratory failure resulting from multiple blunt force trauma to the chest. Also, Barrios sustained cranial swelling, internal injuries, a pelvic fracture, lacerations on his right arm, a torn groin, abrasions on his left hip, and bruising on the right side of his body.
Appellant sustained a laceration on his head and a laceration on his left knee.
Tony sustained a laceration on his right cheek and a seat belt abrasion on the right side of his neck.
Photographs were taken of the scene, the damage to the Lexus and the injuries sustained by its occupants. Maselli noticed blood on the headrest of the driver's seat of the Lexus and saw that a strand of long hair was stuck on the blood. At the time of the accident, both Tony and Barrios had shaved heads and appellant had long hair. Maselli took the headrest into custody and sent it to the Department of Justice for testing. The blood on the headrest was swabbed and DNA tested. The test identified appellant and eliminated Barrios as a possible source of the sample. The criminalist who performed the DNA test was not provided with a sample of Tony's blood.
Based on damage to the Lexus and the injuries sustained by its occupants, Maselli opined that appellant was the driver, Barrios sat in the front passenger seat and Tony sat on the right side of the rear seat. Appellant and Tony had their seat belts buckled when the accident occurred. Barrios ejected from the Lexus through the right front window. Maselli concluded that appellant was the driver based on the relatively minor injuries he sustained and the blood and strand of hair found on the driver's seat headrest.
Appellant's defense was based on the premise that he was a passenger in the Lexus when the accident occurred. Appellant testified that he was drinking the night before the accident and he continued drinking at Trina Alaniz's house when he awakened the next morning. He went with Barrios and Tony in the Lexus to buy some more beer. Appellant testified he was sitting on the front passenger seat and Barrios was driving. He started to blackout after they left the house and does not remember anything until he saw a scared look on Barrios's face; the next thing appellant remembers is a person telling him that help is on the way. Appellant testified that the police told him that he was the driver and he repeatedly denied it. Appellant admitted that he lied to the police when he told them that he was not involved in the accident. He also admitted two prior drunk driving convictions and that his driver's license was suspended when the accident occurred. Appellant also admitted that despite having a suspended license, he still drove occasionally. Finally, appellant admitted that at times he drove other people's cars.
Appellant's aunt, Melissa Contreras, and his friend, Steven Thomas, testified that on the morning of the accident a group of people, including appellant, Barrios and Tony, were all drinking beer and socializing outside of Trina Alaniz's house. Around 8:00 a.m., appellant, Barrios and Tony left in the Lexus to buy some more beer for the group. Barrios got into the driver's seat; appellant sat on the front passenger seat; Tony sat on the back seat behind appellant.
Jennifer Barrios (Jennifer), who was Barrios's mother and is appellant's aunt, testified that Barrios was the primary user of the Lexus even though he did not have a valid driver's license.
Celia Hartnett gave expert accident reconstruction testimony for the defense. She was unable to examine the Lexus because it was sold at auction in August 2005 and crushed for scrap metal in June 2006. Because she could not examine and analyze the interior of the Lexus, she was unable to determine who drove the vehicle. Hartnett testified that it would be speculative to make conclusions concerning the positions of appellant, Barrios and Tony in the Lexus based on photographic evidence of the damage to the Lexus and the physical injuries sustained by its occupants.
(LD 1, pp. 2-6).
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 Kings 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 statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.
II. Legal Standard of Review
A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless he 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); Lockyer v. Andrade , 538 U.S. 63, 70-71 (2003); Williams , 529 U.S. at 412-413.
A state court decision is "contrary to" clearly established federal law "if it applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases, or "if it confronts a set of facts that is materially indistinguishable from a [Supreme Court] decision but reaches a different result." Brown v. Payton , 544 U.S. 133, 141 (2005), citing Williams , 529 U.S. at 405-406. A state court decision involves an "unreasonable application" of clearly established federal law "if the state court applies [the Supreme Court's precedents] to the facts in an objectively unreasonable manner." Id., quoting Williams , 529 U.S. at 409-410; Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) ( per curiam ).
Consequently, a federal court may not grant habeas relief simply because the state court's decision is incorrect or erroneous; the state court's decision must also be objectively unreasonable. Wiggins v. Smith , 539 U.S. 510, 511 (2003) (citing Williams , 529 U.S. at 409). In Harrington v. Richter , 562 U.S. ___, 131 S.Ct. 770 (2011), the U.S. Supreme Court explained that an "unreasonable application" of federal law is an objective test that turns on "whether it is possible that fairminded jurists could disagree" that the state court decision meets the standards set forth in the AEDPA. If fairminded jurists could so disagree, habeas relief is precluded. Richter , 131 S.Ct. at 786. As the United States Supreme Court has noted, AEDPA's standard of "contrary to, or involv[ing] an unreasonable application of, clearly established Federal law" is "difficult to meet, " because the purpose of AEDPA is to ensure that federal habeas relief functions as a "guard against extreme malfunctions in the state criminal justice systems, '" and not as a means of error correction. Richter , 131 S.Ct. at 786, quoting Jackson v. Virginia , 443 U.S. 307, 332, n. 5 (1979)(Stevens, J., concurring in judgment). The Supreme Court has "said time and again that an unreasonable application of federal law is different from an incorrect application of federal law.'" Cullen v. Pinholster , 131 S.Ct. 1388, 1410-1411 (2011). Thus, a state prisoner seeking a writ of habeas corpus from a federal court "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 of fairminded disagreement." Richter , 131 S.Ct. at 787-788. Put another way, a state court's determination that a claim lacks merit bars federal habeas relief so long as "fairminded jurists could disagree" on the state court's decision. Yarborough v. Alvarado , 541 U.S. 652, 664 (2004).
Moreover, federal "review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen , 131 S.Ct. at 1398 ("This backward-looking language requires an examination of the state-court decision at the time it was made. It follows that the record under review is limited to the record in existence at the same time-i.e., the record before the state court.")
The second prong of federal habeas review involves the "unreasonable determination" clause of 28 U.S.C. § 2254(d)(2). This prong pertains to state court decisions based on factual findings. Davis v. Woodford , 384 F.3d at 637, citing Miller-El v. Cockrell , 537 U.S. 322 (2003). Under § 2254(d)(2), a federal court may grant habeas relief if a state court's adjudication of the petitioner's claims "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." Wiggins v. Smith , 539 U.S. at 520; Jeffries v. Wood , 114 F.3d at 1500 (when reviewing a state court's factual determinations, a "responsible, thoughtful answer reached after a full opportunity to litigate is adequate to support the judgment"). A state court's factual finding is unreasonable when it is "so clearly incorrect that it would not be debatable among reasonable jurists." Id .; see Taylor v. Maddox , 366 F.3d 992, 999-1001 (9th Cir. 2004), cert.denied, Maddox v. Taylor , 543 U.S. 1038 (2004).
The AEDPA also requires that considerable deference be given to a state court's factual findings. "Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state court proceedings, § 2254(d)(2)." Miller-El v. Cockrell , 537 U.S. at 340. Both subsections (d)(2) and (e)(1) of § 2254 apply to findings of historical or pure fact, not mixed questions of fact and law. See Lambert v. Blodgett , 393 F.3d 943, 976-077 (2004).
To determine whether habeas relief is available under § 2254(d), the federal court looks to the last reasoned state court decision as the basis of the state court's decision. See Ylst v. Nunnemaker , 501 U.S. 979, 803 (1991); Robinson v. Ignacio , 360 F.3d 1044, 1055 (9th Cir. 2004). Where the state court decided the petitioner's claims on the merits but provided no reasoning for its decision, the federal habeas court conducts "an independent review of the record... to determine whether the state court [was objectively unreasonable] in its application of controlling federal law." Delgado v. Lewis , 223 F.3d 976, 982 (9th Cir. 2002); see Himes v. Thompson , 336 F.3d 848, 853 (9th Cir. 2003). "[A]lthough we independently review the record, we still defer to the state court's ultimate decisions." Pirtle v. Morgan , 313 F.3d 1160, 1167 (9th Cir. 2002). Where the state court denied the petitioner's claims on procedural grounds or did not decide such claims on the merits, the deferential standard of the AEDPA do not apply and the federal court must review the petitioner's s claims de novo. Pirtle v. Morgan , 313 F.3d at 1167.
The prejudicial impact of any constitutional error is assessed by asking whether the error had "a substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson , 507 U.S. 619, 623 (1993); see also Fry v. Pliler , 551 U.S. 112, 119-120 (2007)(holding that the Brecht standard applies whether or not the state court recognized the error and reviewed it for harmlessness). Some constitutional errors, however, do not require that the petitioner demonstrate prejudice. See Arizona v. Fulminante , 499 U.S. 279, 310 (1991); United States v. Cronic , 466 U.S. 648, 659 (1984). Furthermore, where a habeas petition governed by the AEDPA alleges ineffective assistance of counsel under Strickland v. Washington , 466 U.S. 668 (1984), the Strickland prejudice standard is applied and courts do not engage in a separate analysis applying the Brecht standard. Avila v. Galaza , 297 F.3d 911, 918 n. 7 (9th Cir. 2002); Musladin v. Lamarque , 555 F.3d 830, 835 (9th Cir. 2009).
III. Review of Petitioner's Claims.
The instant petition itself alleges the following as grounds for relief: (1) denial of Petitioner's Trombetta motion violated his right to federal due process; (2) the trial court erred denying Petitioner's new trial motion based on Trombetta grounds; (3) the trial court erred in denying Petitioner's motion for new trial based on newly discovered evidence; (4) the failure to arraign Petitioner in a timely manner under California and federal law violated Petitioner's due process rights; (5) failure to afford Petitioner a timely preliminary hearing violated his due process rights; and (6) ineffective assistance of trial counsel based upon counsel's failure to conduct a meaningful pre-trial investigation. (Doc. 14).
A. Denial Of Petitioner's Pre-Trial Trombetta Motion.
Petitioner first contends that the trial court denied Petitioner his federal due process rights in denying Petitioner's pre-trial Trombetta motion. This contention is without merit.
1. The 5th DCA's Opinion.
The 5th DCA rejected Petitioner's claim as follows:
I. Failure to preserve the Lexus did not infringe appellant's due process right.
The Lexus was impounded by the California Highway Patrol on the day of the accident. It was released for sale by the California Highway Patrol on August 30, 2005; it was sold at auction on this date to an auto salvage company. The Lexus was transferred to two other owners and in June 2006 it was stripped of component parts and crushed for scrap metal.
On October 18, 2005, charges were filed against appellant. He was arraigned on August 17, 2006. Ken Brock was immediately listed as counsel of record. The preliminary hearing was held on September 6, 2006; Maselli was the only witness. Appellant's first informal request for location of the Lexus was made in October 2006.
On July 20, 2007, appellant filed a pretrial motion asserting that release from impound and sale of the Lexus violated Trombetta. He sought dismissal of the case or suppression of all DNA evidence against him and suppression of Maselli's observations and opinions. In his moving papers, appellant primarily focused on the contention that the interior of the vehicle contained numerous observable and testable blood stains in various locations and these stains were potentially "exculpatory or incriminatory nature." Appellant also mentioned that the respective positioning of the driver and passenger seats had evidentiary value.
Appellant supported the motion with three declarations authored by forensic scientists who were contacted by defense counsel. The first declaration was authored by the defense's accident reconstruction expert, Celia Hartnett. She declared that she recommended to defense counsel that various tests be performed on the interior of the vehicle to establish the driver's identity and positions of the three occupants when the accident occurred. "Due to the fact that the vehicle was destroyed before our staff had an opportunity to perform any of these examinations, significant physical evidence was lost that may have had the potential to either positively identify the driver, or to positively place [appellant] in a position in the vehicle other than the driver's seat." The second declaration was authored by Robert Jess, a senior forensic scientist. He declared that if the Lexus "had not been destroyed, further examination could have been conducted by the Defense to aid in determining the location of each occupant of the vehicle at the time of the incident." The destruction of the vehicle "caused the loss of significant physical evidence, which might have otherwise had potential reconstruction value. [Boldface and italics omitted.]" The final declaration was authored by Laurie Jennings, a biological screening and DNA expert. She declared that "[w]ith a properly and professionally conducted probe of the vehicle, the positions of each of the three involved individuals may have been determined. Due to the fact that the vehicle was destroyed before I had an opportunity to perform my own examinations, significant physical evidence was lost which might have otherwise had potential reconstruction value."
The People opposed the motion, arguing that the Lexus did not contain material, exculpatory evidence that was apparent before its destruction. Since appellant denied being involved in the accident, the additional blood evidence inside the Lexus was potentially incriminating and did not have apparent exculpatory value. In any event, because appellant climbed from the wreckage through the passenger side, his blood would be found throughout the cabin. Also, appellant did not establish bad faith.
The motion was denied after hearing. The court determined there was no evidence of bad faith on the part of the individuals responsible for investigation of the accident and storage of the Lexus. Further, there was no evidence showing that the failure to maintain custody and control of the Lexus after the initial investigation was done intentionally for the purpose of impeding preparation of a defense. Their decisions concerning investigation of the accident and the storage of the vehicle appeared to be reasonable and appropriate under the circumstances. The court also determined it would not have been reasonably foreseeable to the investigating officers that other blood sites in the vehicle would be exculpatory or of critical importance. The evidence that might have been obtained from additional testing would have been ambiguous. The presence of blood in other sites within the Lexus would not significantly diminish the probative value of the blood and hair found on the headrest because appellant was seen crawling from the car.
B. The pretrial Trombetta motion was properly denied.
Trombetta, supra , 467 U.S. 479 and Arizona v. Youngblood (1988) 488 U.S. 51 (Youngblood) establish the standard for a federal due process claim arising from failure to preserve evidence. In Trombetta, the Supreme Court held that the preservation obligation is "limited to evidence that might be expected to play a significant role in the suspect's defense." ( Trombetta, supra , 467 U.S. at p. 488, fn. omitted.) To meet the standard of constitutional materiality, the evidence at issue "must both possess an exculpatory value that was apparent before the evidence was destroyed" and it must "be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." ( Id. at p. 489.) In Youngblood, the Supreme Court determined that the state's responsibility is further limited when the defendant's challenge is to "the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant." ( Youngblood, supra , 488 U.S. at p. 57.) In such a case, "unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process...." ( Id. at p. 58.) In California state courts, the Trombetta and Youngblood standards are applied together. If the evidence has apparent exculpatory value, then the state has a duty to preserve it and loss or destruction of this evidence infringes the defendant's due process right, even if the police acted in good faith. When the evidence is merely potentially useful to the defense, the state's responsibility is more limited. In such a case, bad faith must be shown to prove a denial of due process. ( People v. Roybal (1998) 19 Cal.4th 481 , 509-510 (Roybal).) If the defendant demonstrates that significant exculpatory evidence was lost or establishes bad faith in connection with the loss of potentially useful evidence, the trial court has discretion to impose appropriate sanctions. ( People v. Medina (1990) 51 Cal.3d 870 , 894.) On review, an appellate court "must determine whether, viewing the evidence in the light most favorable to the superior court's finding, there was substantial evidence to support its ruling." ( Roybal, supra , 19 Cal.4th at p. 510.)
i. The Lexus did not contain evidence having an exculpatory value that was apparent when the vehicle was released from impound and sold.
We agree with the trial court that the Lexus did not contain evidence having an exculpatory value that was apparent before the vehicle was released from impound and sold in August 2005. Appellant gave a statement on the day of the accident denying any involvement in the accident and stating that he was injured in a fall. This was a rollover collision and McCain heard appellant wrestling around inside the Lexus and climb out through the passenger side of the vehicle. McCain told police officers that appellant admitted being the driver. Therefore, additional fingerprints or blood evidence matching appellant's DNA type anywhere inside the Lexus would have been inculpatory in the sense that it would have tended to disprove appellant's statement that he was not involved in the accident and to support McCain's statement that he saw appellant climb out of the vehicle. Furthermore, the three defense experts merely averred that analysis and testifying of blood, fingerprint and positioning evidence contained inside the Lexus might have benefitted the defense. The experts did not aver that such evidence necessarily would have been exculpatory or have supported appellant's trial defense that he was a passenger. Such a pronouncement would have been highly speculative. It is equally likely that additional evidence derived from the Lexus would have provided further proof that appellant was the ...