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Cervin v. Muniz

United States District Court, E.D. California

December 15, 2014

MANUEL JOSE CERVIN, Petitioner,
v.
WILLIAM MUNIZ, Acting Warden, Salinas Valley State Prison, [1] Respondent

Manuel Jose Cervin, Petitioner, Pro se, SOLEDAD, CA.

For Grounds, William Muniz, Respondents: Tami M. Krenzin, LEAD ATTORNEY, Attorney General's Office for the State of California, Sacramento, CA.

MEMORANDUM DECISION

JAMES K. SINGLETON, JR., Senior United States District Judge.

Manuel Jose Cervin, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Cervin is currently in the custody of the California Department of Corrections and Rehabilitation and is incarcerated at Salinas Valley State Prison. Respondent has answered, and Cervin has replied.

I. BACKGROUND/PRIOR PROCEEDINGS

In resolving his claims on direct appeal, the Court of Appeal recounted the facts of this case as follows:

Late one night, as the victim and his girlfriend drove up to the victim's house and prepared to turn left into the driveway, they found their way blocked by an occupied car. When the car did not move, the victim honked the horn. The blocking car drove down the street, the couple turned into the driveway, and the victim got out. The other car, which had driven forward a few houses, backed up and blocked the driveway again. The driver rolled down the window and the occupants said something to the victim, who raised his hands and yelled, " What the fuck?" The occupants of the car were smirking. The passenger in the front seat leaned toward the driver's side of the car, pointed a gun out of the window and shot the victim, killing him. The car then sped off.
A subsequent investigation revealed [Cervin] to be the driver of the car and a leader of a gang associated with the Nortenos. The three other passengers were fellow gang members. One had shown [Cervin] a gun earlier in the day. The group subsequently went to a park and then a pizza parlor where [Cervin] admired the video game shooting skills of another person, and stated that he wanted to shoot someone.
An information charged [Cervin] with first degree murder and alleged a firearms and gang enhancement.
At trial, an expert witness described gang behavior, particularly that of the Nortenos. In response to a series of hypothetical questions, he testified that gang members often have their weapons with them and occupants of a car would have known of their presence. He explained the importance of maintaining respect in a gang, and said that a gang member would need to respond to any perceived disrespect to avoid being thought of as weak.
[Cervin] admitted being a gang member and the driver of the car, but argued that the shooting was unconnected to gang activity.
The jury acquitted [Cervin] of first degree murder but convicted him of the lesser included offense of second degree murder. It also found the charged enhancements to be true. The court sentenced [Cervin] to an aggregate prison term of 40 years to life. . . .

People v. Cervin, No. C060848, 2012 WL 1021712, at *1 (Cal.Ct.App. Mar. 27, 2012).

Cervin appealed through counsel, arguing that: 1) the trial court violated constitutional guarantees in refusing to bifurcate the gang allegation; 2) a gang expert offered improper opinion testimony; 3) there was insufficient evidence to support the gang enhancement; and 4) the court erred in instructing the jury on the natural and probable consequences doctrine. The Court of Appeal affirmed the judgment of conviction in reasoned opinion dated March 27, 2012. Id. at *5. Cervin then filed a counseled petition for review, in which he raised the same claims. The California Supreme Court summarily denied review on June 27, 2012. Cervin did not file any petitions for writ of habeas corpus with the state courts.

Cervin filed his pro se Petition with this Court on July 9, 2013. Respondent concedes that Cervin exhausted his claims in state court and does not ...


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