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Rivera v. Miller

United States District Court, S.D. California

January 6, 2015

GAMALIER REYES RIVERA, Petitioner,
v.
AMY MILLER, Warden, et al., Respondents.

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, AND (1) DISMISSING ATTORNEY GENERAL AS RESPONDENT; (2) ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION; AND [Doc. No. 25] (3) DENYING CERTIFICATE OF APPEALABILITY [Doc. No. 31]

MARILYN L. HUFF, District Judge.

On November 8, 2013, Petitioner Gamalier Reyes Rivera ("Petitioner"), a state prisoner proceeding pro se and in forma pauperis, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) On April 9, 2014, Respondent filed a response to the petition. (Doc. No. 17-1.) On July 23, 2014, Petitioner filed a traverse. (Doc. No. 24.) On October 8, 2014, the magistrate judge issued a report and recommendation ("report") to dismiss Kamala Harris as Respondent, deny the petition for writ of habeas corpus, and deny the request for an evidentiary hearing. (Doc. No. 25.) On December 8, 2014, Petitioner filed objections to the report. (Doc. No. 32.) Also on December 8, 2014, Petitioner filed an application for a certificate of appealability. (Doc. No. 31.) After careful consideration, the Court denies the petition for writ of habeas corpus, adopts the magistrate judge's report and recommendation, dismisses Kamala Harris as Respondent, and denies the application for certificate of appealability.

Background

I. Procedural History

On January 31, 2011, a jury convicted Petitioner of two counts of attempted first degree murder, two counts of aggravated mayhem, one count of residential burglary. (Lodg. No. 1, vol. 1, part 2 at 189-97.) The jury also found the enhancements associated with the guilty verdicts to be true. (Id.) Petitioner appealed his conviction to the California Court of Appeal, Fourth Appellate District, Division One. (Lodg. No. 4.) The state appellate court affirmed Petitioner's convictions in an unpublished written opinion. (Lodg. No. 7.) Petitioner then filed a petition for review in the California Supreme Court, which denied the petition without citation of authority. (Lodg. Nos. 8, 9.)

Following that denial, Petitioner filed a petition for writ of habeas corpus in the San Diego Superior Court. (Lodg. No. 10.) The superior court denied the petition in an unpublished order. (Lodg. No. 11.) Petitioner then filed a petition for writ of habeas corpus in the California Court of Appeal, which denied the petition in an unpublished order. (Lodg. Nos. 12, 13.) Finally, Petitioner filed a habeas corpus petition in the California Supreme Court, which denied the petition without citation of authority. (Lodg. Nos. 14, 15.)

On November 8, 2013, Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) In his traverse, Petitioner agrees to the removal of Kamala Harris as a Respondent. (Doc. No. 24 at 9.)[1] Petitioner argues his trial and appellate counsel were ineffective. (Id. at 19-31.) Petitioner contends the prosecutor committed misconduct. (Id. at 32-33.) He also claims the trial court did not properly instruct the jury. (Id. at 33-37.)

Respondent argues the state courts' resolution of the claims was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. (Doc. No. 17-1 at 38.) In addition, Respondent contends the claim regarding jury instructions is procedurally barred. (Id. at 15-18.)

II. Statement of Facts

The Court takes the following facts from the California Court of Appeal's opinion:

Rivera married Erika Von Der Heyde in 2002. They had a daughter and lived together in San Ysidro until they divorced in 2006. They remarried in 2007 and lived together in Imperial Beach, but separated again in December 2008, and began divorce proceedings for a second time. They both started dating other people. However, the divorce was contentious. They argued over custody and support issues. Eventually, Von Der Heyde restricted communication with Rivera through her attorney only.
On or about July 5, 2009, Von Der Heyde, along with her daughter, moved into her boyfriend's home in Escondido. Von Der Heyde decided to move to Escondido from Imperial Beach because she was afraid Rivera was going to take their daughter and flee to Puerto Rico. Von Der Heyde slept in a bedroom with Jesus Vinas, her boyfriend, and her daughter slept in a separate room. Two other couples also lived in the house. One of those couples was Chris Anguiano and Samantha Shaffer, who shared a bedroom in the house as well.
On the night of July 8, 2009, sometime around midnight, Rivera hired a taxi to drive him from Imperial Beach to Escondido, a distance of about 45 to 50 miles. He hired a taxi despite the fact that he owned a vehicle he could have driven that night. He left the vehicle in its parking space at his apartment and called a taxi from a 7-Eleven that was between a half-mile to a mile away from his residence. He left his television on and the front door to his apartment unlocked. Rivera also did not bring his cell phone with him. Although he did not recall why he left it, he did admit the cell phone could have been used to track his position.
After arriving at Vinas's house, Rivera entered it, armed with two hatchets, and walked into a bedroom where Anguiano and Shaffer lay sleeping. A dog in the bedroom started barking, which caused Anguiano to wake up. Anguiano reached across Shaffer to grab his glasses from a window sill. At that moment, Rivera started hitting Anguiano with a hatchet. He hit him first in the chest, causing Anguiano to fall on top of Shaffer who was lying in the bed. Rivera continued his attack on Anguiano, striking his back with a hatchet several times. When Anguiano was finally able to stand up, Rivera struck him in the face with a hatchet. Anguiano attempted to defend himself, was able to throw Rivera to the ground, but Rivera struck him again in the face with the hatchet. Anguiano eventually passed out on the bedroom floor. At one point during the struggle, Rivera moved toward Shaffer.
During the attack, Shaffer was screaming, which woke up Vinas, and he went to her bedroom. He pulled Rivera away from Anguiano and dragged him out of the room. Vinas struggled with Rivera, and Rivera eventually dropped the one hatchet he still possessed (the other hatchet was found in the house, apparently dropped by Rivera earlier). At that point, Rivera fled from the house, but was arrested a short time later at a nearby 7-Eleven.
Anguiano suffered life threatening injuries from the attack, including a deep laceration to his face and one to his lower neck, which cut across the trachea, through the clavicle and down into the deltoid muscle. He also suffered lacerations to his arms and back. Due to his blood loss, Anguiano went into full cardiac arrest about 20 minutes after arriving at a hospital. Anguiano underwent surgery, and remained in a coma for about two months. As a result of his injuries, Anguiano suffers from a host of significant problems. He has a grossly abnormal gait, has problems with balance and coordination, and is blind. He also suffers symptoms of posttraumatic stress disorder (PTSD), including insomnia, depression, nightmares, and flashbacks.
Shaffer suffered injuries to her thighs, knees and a toe from Rivera's hatchet attack. She has scars on her legs and endures chronic pain in her legs. She is unable to work because she cannot stand for long periods of time and suffers from PTSD.
Defense
Rivera testified on his own behalf. He admitted entering Vinas's house armed with two hatchets and using the hatchets to inflict the injuries suffered by Anguiano and Shaffer. However, he testified he did not intend to hurt anyone when he entered the house, and he inflicted the injuries only in self-defense after Anguiano attacked him. Rivera explained that his plan was to enter the house and only scare Von Der Heyde with the hatchets. Although he had a service firearm from his job as a border patrol agent, he decided to bring hatchets, not his gun, because he believed hatchets were "the scariest thing." His purported purpose for this plan was to motivate Von Der Heyde to become more cooperative regarding the custody of their daughter. He testified that his plan went awry when the first room he entered happened to be occupied by Anguiano and Shaffer instead of Von Der Heyde.

People v. Rivera, No. DO59464, 2012 WL 2168806, at *1-2 (Cal.Ct.App. June 14, ...


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