United States District Court, E.D. California
FINDINGS & RECOMMENDATIONS
KENDALL J. NEWMAN, Magistrate Judge.
Petitioner is a state prisoner, proceeding without counsel, with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2009 conviction for second degree robbery and evading a police officer. Petitioner claims that appellate counsel provided ineffective assistance of counsel on direct appeal by failing to challenge the sufficiency of the evidence supporting the gun use enhancement, and that the trial court erred by refusing to give a defense pinpoint jury instruction that the firearm must be real and not a replica. After careful review of the record, this court concludes that the petition should be denied.
II. Procedural History
On June 1, 2009, a jury found petitioner guilty of second degree robbery and evading a police officer, and found true the allegation that petitioner personally used a handgun during the robbery. (Clerk's Transcript ("CT") 194-95.) Petitioner was sentenced to 15 years in state prison.
Petitioner appealed the conviction to the California Court of Appeal, First Appellate District. The Court of Appeal affirmed the conviction on January 5, 2011. (Respondent's Lodged Exhibit ("LE") 8.)
Petitioner did not file a petition for review in the California Supreme Court.
On December 27, 2011, petitioner filed a petition for writ of habeas corpus in the Solano County Superior Court. (ECF No. 14-1.) On February 16, 2012, the Solano County Superior Court denied the petition. (ECF No. 1 at 91-92.)
Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, First Appellate District, on April 26, 2012. (ECF No. 14-2.) The California Court of Appeal denied the petition on April 30, 2012. (ECF No. 1 at 95.)
On May 22, 2012, petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (ECF No. 14-3.) The California Supreme Court denied the petition on August 22, 2012. (ECF No. 1 at 97.)
Petitioner filed the instant petition on October 23, 2012. (ECF No. 1.)
In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:
An information was filed on February 19, 2008, and it charged defendant with committing second degree robbery (§ 211), and evading an officer with willful disregard (Veh.Code, § 2800.2, subd. (a)). The information also charged defendant with personal use of a firearm pursuant to section 12022.5, subdivision (a)(1), and section 12022.53, subdivisions (b) and (e)(1), as to the robbery charge. The information further alleged that defendant had served two prior prison terms within the meaning of section 667.5, subdivision (b).
Defendant had a jury trial. He conceded guilt of the charged offenses, and contested only the gun use enhancement allegation. At trial, Weldon Nathan Prestwich testified that he was robbed while working as a cashier at a gas station. He stated that on November 20, 2007, defendant, who was unmasked, came into the gas station. Preston noticed that he was wearing skeleton-print gloves, and driving a light blue Cadillac. Defendant purchased $5 of gas for his blue Cadillac.
Five to ten minutes after defendant drove away in his light blue Cadillac, Prestwich testified that a masked man entered the station and demanded money. The man pointed a chrome gun with brown plastic grips at Prestwich. Prestwich opened the cash drawer and the man, who was wearing skeleton-print gloves, reached in and took $500 from the drawer. Prestwich followed the man from the store and saw him get into a light blue Cadillac parked in front of a nearby business. Prestwich called the police.
The police responded and saw a light blue Cadillac on the freeway and followed it. The Cadillac left the freeway and the uniformed officers, who were in marked vehicles, activated their lights and sirens; a chase ensued. During the pursuit, the Cadillac exceeded the speed limit and ran a number of stop signs and red lights. At one point during the chase, two officers in separate cars heard a sound like a gunshot come from defendant's car, although none of the officers saw a muzzle flash or saw defendant throw anything from the vehicle. Eventually the Cadillac was stopped and the police apprehended defendant. Defendant had skeleton-print gloves in his possession and $388, but the police did not find a gun or ammunition.
Police brought Prestwich to the scene and he identified defendant as the person who had come into the gas station. The police took defendant into custody and interviewed him. The jury saw a videotape of this interview. During the interview, defendant made equivocal statements about whether he had a gun and whether he had thrown the gun from his vehicle during the chase. When asked why he tossed the gun out of the car, he responded, "There was no gun." The police responded that there was one and he tossed it and he said, "Yeah. I know...." The police reiterated that he tossed the gun and defendant replied, "Yeah." Defendant told the police that he could not tell them where he tossed the gun. Subsequently, defendant stated, "No. But, the thing is, when you all find the gun, I know you all is, is just, it's, it's a dead bang case. You all, you all really don't need nothin' from me." Defendant repeated that he did not know where he tossed the gun. Subsequently, defendant stated that the gun "was fake." At the end of the interview, when asked again where the gun was, defendant answered that he did not know where he threw it out.
At trial, Police Officer Joseph McCarthy testified that he did not conduct a test on defendant's hands for gunshot residue. An expert for the defense, Rick Williams, testified that he purchased a replica firearm that matched the description of the robber's gun provided by Prestwich; this replica was defense's exhibit A. The replica gun was a starter pistol with a plugged muzzle that could not fire projectiles, but was designed to fire blanks instead. Prestwich was shown the replica in exhibit A; he thought it was a real firearm.
Police Officer Joshua Coleman testified. He stated that the sound of a real firearm and a replica gun that shoots blanks is similar. He explained that starter pistols do not shoot a projectile. He testified that defendant's exhibit A, which had a closed muzzle, would not fire a projectile. Williams, also testified that the difference between a starter pistol and a real gun was that "the barrel is plugged and the cylinder portion of it, if it's closed off is not bored all the way through so you can't put a real bullet into it."
At the close of evidence, defendant requested that the court give an instruction "something to the effect that the firearm must be real and not a replica firearm in order to find" the gun enhancement to be true. The court denied this request, explaining that the definition of a firearm contained in other instructions was adequate.
During closing argument, the prosecutor stated: "The issue in this case is whether or not the defendant used a real gun during this robbery." Defendant's counsel agreed with the prosecutor on this point and stated: "Now, this case is, I will agree with [the prosecutor], it is about one thing. It's did the prosecution prove beyond all reasonable doubt that the gun that was used during the robbery on November 20, 2007[, ] was real. That's it."
The trial court gave the jury a number of instructions. Specifically, the court gave CALCRIM No. 3146, which states as follows: "If you find the defendant guilty of [robbery], you must then decide whether the People have proved the additional allegation that the defendant personally used a firearm during the commission of that crime. [¶] A firearm is any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion. [¶] A firearm does not need to be in working order if it was designed to shoot and appears capable of shooting. A firearm does not need to be loaded. [¶] Someone personally uses a firearm if he or she intentionally does any of the following: [¶] 1. Displays the firearm in a menacing manner; [¶] 2. Hits someone with the firearm; [¶] OR [¶] 3. Fires the weapon. [¶] The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved."
The jury found defendant to be guilty of the charged offenses and found the firearm allegation as to count one to be true. Defendant admitted the two prior prison term convictions. The court sentenced defendant to 15 years in prison.
(People v. Acosta, slip op. at 2-5.)
IV. Standards for a Writ of Habeas Corpus
An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran , 562 U.S. 1, 4 (2010); Estelle v. McGuire , 502 U.S. 62, 67-68 (1991); Park v. California , 202 F.3d 1146, 1149 (9th Cir. 2000).
Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:
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.
28 U.S.C. § 2254(d).
For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the last reasoned state court decision. Thompson v. Runnels , 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher , 132 S.Ct. 38 (2011); Stanley v. Cullen , 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor , 529 U.S. 362, 405-06 (2000)). Circuit court precedent "may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley , 633 F.3d at 859 (quoting Maxwell v. Roe , 606 F.3d 561, 567 (9th Cir. 2010)). However, circuit precedent may not be "used to refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has not announced." Marshall v. Rodgers , 133 S.Ct. 1446, 1450 (2013) (citing Parker v. Matthews , 132 S.Ct. 2148, 2155 (2012) (per curiam)). Nor may it be used to "determine whether a particular rule of law is so widely accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court, be accepted as correct. Id . Further, where courts of appeals have diverged in their treatment of an issue, it cannot be said that there is "clearly established Federal law" governing that issue. Carey v. Musladin , 549 U.S. 70, 77 (2006).
A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent , 538 U.S. 634');"> 538 U.S. 634, 640 (2003). Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Lockyer v. Andrade , 538 U.S. 63, 75 (2003); Williams , 529 U.S. at 413; Chia v. Cambra , 360 F.3d 997, 1002 (9th Cir. 2004). In this regard, 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." Williams , 529 U.S. at 412. See also Schriro v. Landrigan , 550 U.S. 465, 473 (2007); Lockyer , 538 U.S. at 75 (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a firm conviction' that the state court was erroneous.'"). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter , 131 S.Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado , 541 U.S. 652, 664 (2004)). Accordingly, "[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner 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 for fairminded disagreement." Richter, 131 S.Ct. at 786-87.
If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford , 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey , 533 F.3d 724, 735 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").
The court looks to the last reasoned state court decision as the basis for the state court judgment. Stanley , 633 F.3d at 859; Robinson v. Ignacio , 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque , 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). "When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Richter , 131 S.Ct. at 784-85. This presumption may be overcome by a showing "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst v. Nunnemaker , 501 U.S. 797, 803 (1991)). Similarly, when a state court ...