United States District Court, E.D. California
ORDER SUBSTITUING WARDEN RON RACKLEY AS RESPONDENT FINDINGS AND RECOMMENDATIONS TO DISMISS AND DENY THE PETITION FOR WRIT OF HABEAS CORPUS (DOC. 1), DENY PETITIONER'S REQUEST FOR AN EVIDENTIARY HEARING, ENTER JUDGMENT FOR RESPONDENT, AND DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY
SHEILA K. OBERTO, Magistrate Judge.
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 through 304. Pending before the Court is the petition, which was constructively filed on July 13, 2011. Respondent filed an answer on October 13, 2011. Petitioner filed a traverse on September 18, 2012, and then filed an additional document styled as a traverse on September 3, 2013.
I. Jurisdiction and Order Substituting Respondent
Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh v. Murphy , 521 U.S. 320, 327 (1997); Furman v. Wood , 190 F.3d 1002, 1004 (9th Cir. 1999).
The challenged judgment was rendered by the Superior Court of the State of California, County of Kern (KCSC), which is located within the territorial jurisdiction of this Court. 28 U.S.C. §§ 84(b), 2254(a), 2241(a), (d). Further, Petitioner claims that in the course of the proceedings resulting in his conviction, he suffered violations of his constitutional rights.
Accordingly, the Court has subject matter jurisdiction over the action pursuant to 28 U.S.C. §§ 2254(a) and 2241(c)(3), which authorize a district court to entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court only on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. Williams v. Taylor , 529 U.S. 362, 375 n.7 (2000); Wilson v. Corcoran , 562 U.S. ___, ___, 131 S.Ct. 13, 16 (2010) (per curiam).
An answer was filed on behalf of Respondent, Domingo Uribe, Jr., who was named by Petitioner. In the answer, Respondent admitted that pursuant to the judgment, Respondent had custody of Petitioner at the Centinela State Prison, Petitioner's institution of confinement when the petition and answer were filed. (Doc. 16.) Petitioner thus named as a respondent a person who had custody of Petitioner within the meaning of 28 U.S.C. § 2242 and Rule 2(a) of the Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules). See, Stanley v. California Supreme Court , 21 F.3d 359, 360 (9th Cir. 1994). The fact that Petitioner was transferred to the Folsom State Prison (FSP) after the petition and answer were filed (see doc. 32 filed September 3, 2013) does not affect this Court's jurisdiction. Jurisdiction attaches on the initial filing for habeas corpus relief; it is not destroyed by a transfer of the petitioner and the accompanying custodial change. Francis v. Rison , 894 F.2d 353, 354 (9th Cir. 1990) (citing Smith v. Campbell , 450 F.2d 829, 834 (9th Cir. 1971)). Accordingly, the Court concludes that it has jurisdiction over the person of the Respondent.
In view of the fact that the warden at FSP is Ron Rackley, it is ORDERED that Ron Rackley, Warden of Folsom State Prison, be SUBSTITUTED as Respondent pursuant to Fed.R.Civ.P. 25.
II. Procedural Summary
On August 25, 2008, a Kern County jury found Petitioner guilty of one count of first degree murder in violation of Cal. Pen. Code § 187(a))2 and found true an allegation that Petitioner used a deadly or dangerous weapon within the meaning of Cal. Pen. Code § 12022(b)(1). (LD 12,  CT 374-75.) The trial court denied Petitioner's motion to relieve appointed trial counsel pursuant to People v. Marsden , 2 Cal.3d 118 (1970), on September 23, 2008, and proceeded to sentence Petitioner to an indeterminate term of twenty-five years to life, plus an additional year for the weapons enhancement, and imposed various fines and fees. (Id. at 371-75.)
The conviction was affirmed on appeal by the (CCA) Court of Appeal of the State of California, Fifth Appellate District, on November 12, 2009. (LD 1.) Petitioner filed a petition for review in the California Supreme Court (CSC) in which he argued 1) the trial court erred in its duty of inquiry during Petitioner's post-verdict Marsden motion and 2) the trial court committed prejudicial error when it admitted testimony by Darlene Vasquez that she had made anonymous calls to one of the detectives on the case. The petition for review was denied by the CSC without a statement of reasoning or citation of any authority on January 21, 2010. (LD 2-4.)
On February 16, 2011, Petitioner filed a petition for writ of habeas corpus with the KCSC in which he argued prejudicial error in the admission of testimony, ineffective assistance of counsel, and erroneous denial of the Marsden motion. (LD 5.) On March 17, 2011, the KCSC denied the petition in a reasoned decision. (LD 6.)
On April 22, 2011, Petitioner filed a petition for writ of habeas corpus in the CCA, alleging prejudicial error in the admission of the anonymous calls, erroneous denial of the Marsden motion, and the ineffective assistance of trial and appellate counsel. On June 2, 2011, the Fifth District Court of Appeal denied the petition. (LD 7-8.)
On June 23, 2011, Petitioner filed a petition for writ of habeas corpus in the CSC in case number S194272, in which Petitioner alleged that the anonymous calls were improperly admitted, the trial court erred in denying the Marsden motion, trial counsel provided ineffective assistance, and appellate counsel also provided ineffective assistance. (LD 10.) As of July 13, 2011,  when Petitioner constructively filed the petition in the instant case (doc. 1 at 6, 190), the CSC had not ruled on the petition. However, reference to the official website of the California courts shows that the CSC summarily denied the petition for writ of habeas corpus on November 30, 2011.
III. Factual Summary
In a habeas proceeding brought by a person in custody pursuant to a judgment of a state court, a determination of a factual issue made by a state court shall be presumed to be correct. The petitioner has the burden of producing clear and convincing evidence to rebut the presumption of correctness. 28 U.S.C. § 2254(e)(1); Sanders v. Lamarque , 357 F.3d 943, 947-48 (9th Cir. 2004). This presumption applies to a statement of facts drawn from a state appellate court's decision. Moses v. Payne , 555 F.3d 742, 746 n.1 (9th Cir. 2009). The following statement of facts is taken from the opinion of the CCA in People v. Richard Ray Feliz, no. F056173, filed on November 12, 2009, as reported at People v. Feliz, 2009 WL 3768847, *1-*2 (Nov. 12, 2009).
In 1994, Feliz had a girlfriend named Darlene Vasquez. Although the couple did not live together, Feliz was "always" at Vasquez's apartment. Feliz was extremely jealous of Vasquez. The morning of the murder, November 4, 1994, Feliz accused Vasquez of wanting to be with Shiloh Rodriguez. Shiloh Rodriguez and his older brother Chris Rodriguez FN2 were friends with Feliz and spent time together.
FN2. We will refer to the victim and his brother by first names to distinguish between the two.
On the evening of November 4, Feliz, Shiloh, and two others, spent the evening together drinking beer. Later, the group dispersed. About 8:30 p.m., Chris received a phone call from Shiloh who sounded distressed, asking Chris to come pick him up at Feliz's mother's house as soon as possible. Chris was unable to do so. This was the last time Chris spoke with Shiloh.
On November 4, 1994, between 11:30 p.m. and midnight, Shiloh's body was found at the Union Cemetery in Bakersfield. He had been stabbed 77 times. The weapon used was a single-edged blade approximately five to five-and-a-half inches in length.
The physical evidence at the scene included a blood trail running from the body to the southeast and a number of shoe tracks. Feliz's mother's house was located several blocks southeast of the cemetery. The shoe tracks found at the cemetery were similar to the tread pattern made by Feliz's shoes. Vasquez testified at trial that, the morning after the murder, she saw Feliz clean his shoes in the bathroom with bleach. Despite this effort, the shoes tested positive for human blood. The forensic criminalist testified that the DNA sample extracted from the shoe was consistent with DNA that had been exposed to bleach.
During the initial investigation, Vasquez claimed that Feliz was with her the entire evening. Later, she changed her testimony and stated that the night of the murder, Feliz wakened her. He said "[L]ook, bitch, look what you did, you made me kill my best friend." Feliz also said, "anybody that was to mess with what belonged to him was gonna be handled." He accused Vasquez of "fucking" Shiloh and called Vasquez a "lying bitch" when she denied it. Vasquez heard Feliz say he had lost his knife.
Feliz returned to the room about 30-45 minutes later. The two talked until they went to sleep. The next day, Vasquez saw Feliz and her brother Armondo Ramos, who had been at the apartment when Feliz returned the night before, kick dirt over a pile of burnt clothing in a field located behind Vasquez's apartment. Ramos would later tell police that Feliz had admitted killing Shiloh and that he had seen Feliz burn clothes behind the apartment the night of the murder. At trial, Ramos claimed he remembered nothing. Before the first trial, however, Ramos told police his life had been threatened repeatedly and that he was terrified. He told police he would not say anything if called to testify.
The investigating officers found the pile of burned clothes and a burned towel behind Vasquez's apartment. Vasquez testified at trial that she recognized in the pile the clothes Feliz had been wearing when he came home and a towel from the bathroom. Later tests on the clothing showed the presence of human blood matching Shiloh's DNA pattern.
People v. Feliz, 2009 WL 3768847, *1-*2.
IV. Erroneously Admitted Testimony regarding Anonymous Telephone Calls
Petitioner argues that his conviction was obtained by the erroneous introduction of Darlene Vasquez's testimony concerning her anonymous telephone calls to law enforcement that constituted inadmissible hearsay under Cal. Evid. Code §§ 791 and 1235 because there was no prior consistent statement and no charge of recent fabrication, and the statements were not timely revealed in discovery. Petitioner asserts that the anonymous statements were the only or principal difference between the evidence admitted at his first trial, which resulted in a mistrial, and the evidence admitted at his second trial, which resulted in conviction. Further, the evidence was decisive because the jury in the second trial reached the verdict after receiving a requested rereading of the testimony of Vasquez and a DNA expert. (Pet., doc. 1, 4, 14-20).
Respondent contends that these allegations do not state a federal claim, and in any event the state court decision did not contravene or involve an unreasonable application of federal law because there is no clearly established federal law requiring the exclusion of the evidence. (Ans., doc. 16, 17-20.)
In the traverse, Petitioner alleges that the admission of Vasquez's testimony regarding an anonymous telephone call she made to a detective resulted in the admission of prejudicial hearsay and violated Petitioner's Sixth Amendment right to a fair trial. However, neither a federal fair trial claim nor a Confrontation Clause claim was raised in the petition for review (LD 3) or in the petition for writ of habeas corpus filed in the CSC (LD 10). The Court declines to consider new and unexhausted claims set forth in Petitioner's second traverse. See, Cacoperdo v. Demosthenes , 37 F.3d 504, 507 (9th Cir. 1994), cert. den., 514 U.S. 1026 (1995).
A. Standard of Decision and Scope of Review
Title 28 U.S.C. § 2254 provides in pertinent part:
(d) 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.
Clearly established federal law refers to the holdings, as opposed to the dicta, of the decisions of the Supreme Court as of the time of the relevant state court decision. Cullen v. Pinholster, ___ U.S. ___ , 131 S.Ct. 1388, 1399 (2011); Lockyer v. Andrade , 538 U.S. 63, 71 (2003); Williams v. Taylor , 529 U.S. 362, 412 (2000).
A state court's decision contravenes clearly established Supreme Court precedent if it reaches a legal conclusion opposite to, or substantially different from, the Supreme Court's or concludes differently on a materially indistinguishable set of facts. Williams v. Taylor , 529 U.S. at 405-06. The state court need not have cited Supreme Court precedent or have been aware of it, "so long as neither the reasoning nor the result of the state-court decision contradicts [it]." Early v. Packer , 537 U.S. 3, 8 (2002). A state court unreasonably applies clearly established federal law if it either 1) correctly identifies the governing rule but applies it to a new set of facts in an objectively unreasonable manner, or 2) extends or fails to extend a clearly established legal principle to a new context in an objectively unreasonable manner. Hernandez v. Small , 282 F.3d 1132, 1142 (9th Cir. 2002); see, Williams , 529 U.S. at 407. An application of clearly established federal law is unreasonable only if it is objectively unreasonable; an incorrect or inaccurate application is not necessarily unreasonable. Williams , 529 U.S. at 410. A state court's determination that a claim lacks merit precludes federal habeas relief as long as fairminded jurists could disagree on the correctness of the state court's decision. Harrington v. Richter , 562 U.S. ___, 131 S.Ct. 770, 786 (2011). Even a strong case for relief does not render the state court's conclusions unreasonable. Id . To obtain federal habeas relief, a state prisoner must show that the state court's ruling on a claim was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 786-87. The standards set by § ...