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Deneng v. Virga

United States District Court, N.D. California

January 30, 2015

JOHNNY DENENG, Petitioner,
v.
TIM VIRGA, Warden, Respondent

Johnny Deneng, Petitioner, Pro se, Susanville, CA.

For Tim Virga, Warden (CSP - Sacramento), Respondent: Gregory A. Ott, LEAD ATTORNEY, California State Attorney General's Office, San Francisco, CA; Sharon R. Wooden, LEAD ATTORNEY, CA 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.[1] The Court stayed the case to allow Petitioner to exhaust all of his claims. After Petitioner did so, the Court ordered Respondent to show cause why the petition should not be granted. Respondent filed an answer addressing the merits of the petition, and Petitioner 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.

PROCEDURAL HISTORY

In 2009, a jury in Alameda County Superior Court, found Petitioner guilty of two counts of second-degree murder and two counts of second-degree attempted murder. The jury also found true special allegations for the use of a gun, the discharge of a gun, and, on one of the counts of attempted murder, infliction of great bodily injury. On November 11, 2009, the trial court sentenced him to a term of 105 years plus 34 years in state prison.

Petitioner filed a direct appeal to the California Court of Appeal, which affirmed the conviction and judgment in 2010. In 2011, the California Supreme Court denied a petition for direct review and a habeas petition filed by counsel. Petitioner then filed a pro se petition for a writ of habeas corpus in the state superior court, and while that petition was pending he filed the instant federal petition. After this case was stayed, the state superior court denied the petition, and subsequent pro se habeas petitions to the state appellate and supreme courts were also denied. The stay of this case was then lifted.

BACKGROUND[2]

On the night of December 22, 2006, appellant met his sister and brother-in-law and two other friends at the Lucky Star Lounge in San Leandro. A birthday party was being held in the bar and it was very crowded inside. Appellant had several shots of cognac and appeared to be drunk.
Manuel Nahsonhoya and his friend Raymond Dazhan were also drinking at the bar. Dazhan thought he heard appellant say something disparaging about Nahsonhoya while they were smoking outside. Nahsonhoya, who was much larger than appellant and had been drinking to the point that he felt " buzzed, confronted appellant about talking " shit" about him. An argument began between Nahsonhoya and Dazhan on the one hand, [3] and appellant and his friends on the other. Both sides were yelling and cursing.
Someone in Nahsonhoya's group pushed appellant to the ground. Nahsonhoya held a broken beer bottle in each hand, gesturing toward the other group. The bartender came outside with her boyfriend and tried to calm everyone down. She told appellant that he should leave and his group started walking toward their cars. Nahsonhoya called someone a bitch, which seemed to make appellant even more upset.
Appellant's brother-in-law Youeth Pek decided to drive appellant home because appellant was too drunk to get behind the wheel, when they reached the car, Pek sat in the driver's seat but appellant refused to get in. Appellant paced for a few minutes and then walked toward the front of the bar, saying he would be right back. Shortly afterward, Pek heard gunshots.
About 15 people were standing outside the front of the bar when appellant returned and began shooting with a semi-automatic handgun. Ruby Vega, who had been talking to Nahsonhoya that evening, was shot in the head and fatally wounded. Daniel Camarillo, who had been attending the birthday party at the bar, was shot in the chest and died of his wound. Several others were wounded but survived: Nahsonhoya was shot in die upper left thigh; Raymond Jacquez was shot in the leg; William Tril was shot in the torso and arm; Calvin Le was shot in the thigh; and Keith Asazawa was shot in the thigh. According to Alex Law, who had come to the bar to meet his friend Asazawa and others, appellant was the shooter.
Appellant stopped shooting when his gun jammed. Dazhan went over and grabbed him, calling to Nahsonhoya for help. Nahsonhoya, who was still able to walk despite his gunshot wound, went to assist Dazhan and together they knocked appellant to the ground in the middle of road. They beat appellant until he was unconscious, with Nahsonhoya using a broken bottle to stab and slash him. They ran away because they feared they would be arrested for the beating.
When police arrived they found appellant lying unconscious and bloody in the road. A semiautomatic handgun that had jammed was also found in the road.
Appellant was charged with two counts of first degree murder and six counts of attempted murder with premeditation, along with enhancement allegations based on the use of a firearm and the infliction of great bodily injury. Ruby Vega and Daniel Camarillo were the named victims in the murder counts; Dazhan, Nahsonhoya, Jacquez, Tril, Le and Asazawa were the named victims in the attempted murder counts. During the jury trial on the charges, the defense position was that appellant had acted in a heat of passion, having been provoked during the confrontation with Nahsonhoya and Dazhan. Defense counsel urged the jury to convict appellant of two counts of voluntary manslaughter and six counts of attempted voluntary manslaughter rather than murder and attempted murder as charged.
The jury convicted appellant of the second degree murder of Vega and Camarillo and the attempted murder without premeditation of Dazhan and Nahsonhoya, and found true the enhancement allegations attached to those counts. (Pen.Code, § § 187, 664/187, 12022.53, subds. (b)-(d), 12022.7, subd. (a).) It acquitted him of the four other attempted murder counts.

(Op. at 2-4) (footnote renumbered from original).

DISCUSSION

A. 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. The parties have not provided a copy of a reasoned opinion on the first two claims by the California Supreme Court, and the record appears to indicate that it was a summary denial. Thus, the last reasoned opinion on the first two claims is the California Court of Appeal's opinion on direct review. (Ans. Ex. 3.) The state superior court's order denying Petitioner's habeas petition is the last (and only) reasoned opinion on the third, fourth and fifth claims. (Pet.'s Notice of Exhaustion (Dkt. No. 8) at 5-11.)

The Supreme Court has affirmed that under AEDPA, there is a heightened level of deference a federal habeas court must give to state court decisions. See 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 principles in mind regarding the standard and limited scope of review in which this Court may engage in federal habeas proceedings, the Court addresses Petitioner's claims.

B. Legal Claims and Analysis

Petitioner raises five claims as grounds for federal habeas relief: (1) he did not receive effective assistance of trial counsel because counsel's failure to object to the admission of Alex Law's preliminary hearing testimony did not preserve that issue for appeal; (2) he did not receive effective assistance of trial counsel because counsel failed to object to testimony describing him in jail clothes at the preliminary hearing; (3) trial court statements to the jury about intoxication evidence violated his right to due process; (4) appellate counsel was ineffective in failing to appeal the trial court's statements about intoxication evidence; (5) trial ...


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