United States District Court, N.D. California
Gerardo Pineda Gomez, Petitioner, Pro se, Crescent City, CA.
For Warden Greg Lewis, Respondent: Jeremy Friedlander, LEAD ATTORNEY, Office of the Attorney General, Department of Justice, San Francisco, CA; Peggy S. Ruffra, LEAD ATTORNEY, CA State Attorney General's Office, San Francisco, CA.
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY
BETH LABSON FREEMAN, United States District Judge.
Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Court ordered Respondent to show cause why the petition should not be granted. Respondent has filed an answer addressing the merits of the petition. Petitioner has filed a traverse. Having reviewed the briefs and the underlying record, the Court concludes that Petitioner is not entitled to relief based on the claims presented and denies the petition.
On October 20, 2010, a trial court in Monterey County found Petitioner guilty of ten crimes: attempted premeditated murder of victim #1 (Raul) (count 1); assault with a firearm, a handgun, against victim #1 (count 2); attempted premeditated murder of victim #2 (Taji) (count 3); assault with a firearm, a handgun, against victim #2 (count 4); shooting at an occupied motor vehicle (count 4); street terrorism (count 6); attempted solicitation of murder (count 7); dissuading a witness by force or threat (count 8); attempted solicitation of a crime, perjury and subornation of perjury (count 9); and street terrorism (count 10). Petitioner committed the first six crimes on or about September 2, 2007, and the last four on or about June 5, 2008. The trial court also found true all charged enhancements, including that the crimes were committed for the benefit of a street gang, a principal discharged a firearm in counts 1-4, and Petitioner had suffered a prior conviction that was both a " strike" and a prior serious felony conviction. (Ans. at 1.)
Petitioner was sentenced to a total determinate sentence of twenty-five years and a consecutive total indeterminate sentence of four life terms with a minimum eligibility for parole after 67 years, although the abstract of judgments stated 77 years. (Id.)
Petitioner filed a direct appeal to the California Court of Appeal, which affirmed the conviction and judgment with two exceptions: it directed the trial court to amend the abstract of judgment to reflect a sentence of 67 years to life instead of 77, and to change the conviction in count 9 to an attempt to solicit perjury. (Ans. Ex. I at 16.) The state appellate court summarily denied Petitioner's petition for a writ of habeas corpus on the same day, i.e., on August 31, 2012. (Id., Ex. J.)
The California Supreme Court summarily denied review on direct appeal, ( id., Ex. L), and denied Petitioner's state habeas petition, ( id., Ex. M).
Petitioner filed the instant federal habeas petition on April 19, 2013.
On September 2, 2007, Raul left work at 7:00 p.m. and picked up his girlfriend Taji in his van. After eating at Super Taqueria, they went to his cousin's apartment complex where Raul intended to take a shower. They arrived at the parking complex at about 10:00 p.m., and Raul parked the van in a marked space. The area was " pretty dark."
Raul and Taji moved to the back of the van to get some clothes. Raul could see clearly out of the van. He explained that someone outside the van could only obtain a " blurry" view when looking inside because the van had privacy glass on the side windows. Raul looked out the side window and saw a Cadillac, which was " dark... like a root beer color" or " like a gold and brownish" with a red interior. The Cadillac pulled in behind Raul's van. If Raul had backed the van out of the parking space, he would have hit the rear passenger side of the Cadillac. Raul recognized the make of the car as soon as it drove in, stating, " I pretty much know my cars. I love cars."
Raul saw five males in the Cadillac. Two of them exited the Cadillac. A man with a mustache and a dark, horizontally-striped shirt approached the van and looked in the window with privacy glass. The man cupped his hands, put them on either side of his eyes, and leaned forward. The man stood outside the van for a minute to a minute and a half. When Raul was asked whether he saw this person in court, he testified that defendant did not look the same.FN3 However, he identified a photograph of defendant, which was taken on the night of the arrest, as the person who looked into the van on the night of the shooting.
FN3 At trial, defendant was clean shaven and wore glasses.
When the man asked who was inside the van, Taji responded, " Are we in your parking?" Raul had a " bad feeling" and was about to move to the front of the van, when the man said, " Hebbron." The man stepped back and tapped the arm of the man next to him. Six shots were fired into the van. One bullet grazed Raul's rib cage and another lodged in his leg. A bullet also grazed Taji. Taji drove Raul to the hospital.
Raul was unable to move his leg for a week and a half, and he could not walk without crutches or a cane for two months. He can no longer run because his leg gives out, and he lost his business.
At 11:22 p.m. on the night of the shooting, Officer Chris Balaoro was on patrol when he saw a dark gray-colored Cadillac. He stopped the vehicle because it matched " the color" and " the description" of the vehicle used in the shooting. Defendant was in the right front passenger seat. Nestor Gomez was the driver and Julio Reynoso Rodriguez was in the rear right passenger seat. Defendant was arrested and transported to jail. Photographs taken at the jail reveal that defendant had Hebbron Street" tattooed on his legs, and *Most Hated, " " Salinas, " " HBN, " " ST, " and " 13" tattooed on his back. Defendant indicated on the jail intake form that he was a Sureno and a member of Hebbron.
The police did not show Raul a photographic lineup. However, a few days after the shooting, Raul saw a newspaper article about shootings in Salinas that weekend. The article included defendant's photograph. According to Raul, defendant's photograph " matched the one that was in [his] mind" of the man who had been looking into the window of his van. Raul also noted that defendant was wearing different clothes in the newspaper photograph than at the time of the shooting. Raul did not read " too much" of the article.
Raul received monthly payments from a governmental agency regarding his appearance as a witness, but he did not know how much money he had received or for how long. He received some money to fix his vehicle at the end of 2007 or the beginning of 2008, and he was still receiving financial assistance at the time of trial. He was not led to believe that this financial assistance required him to testify in a certain way or to identify a particular person.
On June 15, 2008, Deputy Shaun Moran was working in the Monterey County Jail. He was taking inmates from C pod to the visiting area. After he unlocked the cell doors, he watched one inmate hand an item to defendant, who put the item in his pocket and adjusted his sock. Deputy Moran searched defendant and found a pencil in his pocket and two handwritten notes in his socks. After defendant waived his rights, he asked Deputy Moran " to give him a break, " and told him that he had written the notes " to put his thoughts down on paper." Defendant's visitor that day was Joanna Arreola who visited defendant on a regular basis.
One of the notes was a directive to either murder or intimidate Raul and Taji. It stated: " Tell soldier & Chaps we go to jury in 8 days and no one was able to do nothing for [me]. I need you if possible to blast them you can tell Creeper from the hood lives on California Street Chaps knows him he'll do it. [I]f this can't be done for whatever reason at least have a couple of the homies approach the Vato and hyna or any of them and tell them straight out 'if you testify against my homeboys we are gonna smoke you' and flash em a strap callem by their names Raul and Taji. This has to be done mandatory right away. If they testify me and tiny will get life help us out this is the last time I tell you guys I expect you to do it. If we do go to jury on June 25 I want homies
to go to our court." FN4
FN4. When the notes were found in defendant's socks, he had a jury [trial] scheduled for June 23, 2008.
The other note was directed to " Nestor, " " Dad, " and an unnamed third person. The note outlined an alibi for the night of the shooting and indicated that the witnesses were to " stick to the same story."
Joseph Merydith testified as an expert in questioned documents. In his opinion, defendant " probably" wrote the notes found in his socks. He explained that the " probably" standard " in real generic layman's terms, means that probably this person executed this writing, probably nobody else did. To say that probably the sun will rise tomorrow, to put it very generically."
While defendant was incarcerated at the jail, his telephone calls were recorded between September 4, 2007 and June 16, 2008.
On September 4, 2007, defendant spoke to Bebe. He told Bebe to tell Coco to tell Luis that " someone will try to visit him" and " make sure he tells him not to panic... because after all, we didn't do anything." Defendant further directed that this individual be told " not to take time, to fight, to fight, and to tell his lawyer that it wasn't him." During this conversation, Bebe read a newspaper account of the shooting. Bebe referred to one witness as " that stupid bitch." Defendant responded, " Yeah, the, the one who hangs out over there, man?"
On September 4, 2007, defendant also spoke to Jesse. Defendant told him that they " don't have anything. It's just, just her that's singing and that's it." In another call that day, defendant told Nestor to " bring a pencil and paper."
In a call made between September 2, 2007 and October 10, 2007, defendant asked " UM2" whether he had received a paper from Arreola. UM2 replied that he " already gave it to the soldier."
On June 15, 2008, defendant spoke with Arreola. She told defendant that the police " got the letters" that defendant had sent. When defendant asked if anyone had come with her, she replied that no one had, and that she " kept on calling him and like they would just pick up the phone and like they wouldn't answer."
In another call on June 15, 2008, defendant spoke to an unidentified male and appeared to discuss the seizure of the notes found in his socks at the jail. Defendant asked about a possible charge " if they get someone here inside with a paper that says that they want to give candy to, to, to, something, someone." The unidentified male stated that " it could be intimidating a witness or for you to kill somebody they're going to fucken [ sic ] conspiracy to commit murder."
On June 16, 2008, defendant spoke with an unidentified male. Defendant said, " Everything was looking good from that. I blew it." He directed the man to " [t]alk with Luis stupid, talk with him stupid. And, and, and I want, want to put on the batteries, stupid, okay. You know what you guys have to do okay?"
Officer James Knowlton, who was assigned to the gang unit of the Salinas Police Department in 2007, registered defendant on April 7, 2007, as a gang member. At that time, defendant told him that he claimed Hebbron Street, a Sureno criminal street gang in Salinas.
Office Balaoro testified as an expert in the area of gangs, including gangs in Salinas and Sureno criminal street gangs. He testified that the primary activities of a Sureno criminal street gang are car theft and drug sales in order to buy guns. He also identified two crimes committed by Sureño. Hugo Chavez and Hugo Cervantes committed an attempted murder on February 25, 2007. On July 28, 2005, Uriel Martinez committed a shooting. Both incidents resulted in convictions for attempted murder.
In Officer Balaoro's opinion, defendant was an active Hebbron Street gang member in September 2007. He also testified that Julio Rodriguez was an active Hebbron Street Sureno gang member and Nestor Gomez was a Hebbron Street associate. Officer Balaoro opined that both the shooting and the solicitation offenses were committed for the benefit of the gang.
(Op. at 2-7.)
I. Standard of Review
This Court may entertain a petition for writ of habeas corpus " in behalf of a person in custody pursuant to the judgment of a state court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Under the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA"), a district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court's 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). The first prong applies both to questions of law and to mixed questions of law and fact, Williams v. Taylor, 529 U.S. 362, 384-86, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), while the second prong applies to decisions based on factual determinations, Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).
" Under the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-13. A state court decision is an " unreasonable application of" Supreme Court authority, falling under the second clause of § 2254(d)(1), if the state court correctly identifies the governing legal principle from the Supreme Court's decisions but " unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. The federal court on habeas review 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." Id. at 411.
" Under the 'unreasonable application' clause, 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." Williams, 529 U.S. at 413. " Under § 2254(d)(1)'s 'unreasonable application' clause, . . . 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." Id. at 411. A federal habeas court making the " unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was " objectively unreasonable." Id. at 409. The federal habeas court must presume correct any determination of a factual issue made by a state court unless the petitioner rebuts the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
The state court decision to which Section 2254(d) applies is the " last reasoned decision" of the state court. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991); Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir. 2005). When there is no reasoned opinion from the highest state court considering a petitioner's claims, the court " looks through" to the last reasoned opinion. See Ylst, 501 U.S. at 805. In this case, the last reasoned opinion is that of the California Court of Appeal, affirming the conviction. (Ans. Ex. I.)
The Supreme Court has vigorously and repeatedly affirmed that under AEDPA, there is a heightened level of deference a federal habeas court must give to state court decisions. See Hardy v. Cross, 132 S.Ct. 490, 491, 181 L.Ed.2d 468 (2011) (per curiam); Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 783-85, 178 L.Ed.2d 624 (2011); Felkner v. Jackson, 562 U.S. 594, 131 S.Ct. 1305, 179 L.Ed.2d 374 (2011)(per curiam). As the Court explained: " [o]n federal habeas review, AEDPA 'imposes a highly deferential standard for evaluating state-court rulings' and 'demands that state-court decisions be given the benefit of the doubt.'" Id. at 1307 (citation omitted). With these ...