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Hernandez v. Warden, Salinas Valley State Prison

United States District Court, E.D. California

March 18, 2015



JENNIFER L. THURSTON, Magistrate Judge.

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.


Petitioner was convicted in 2008 for shooting at an occupied motor vehicle and three counts of assault with a firearm which involved sentence enhancements and gang allegations. The Tulare County Superior Court sentenced him to an indeterminate 32-years-to-life, and he remains in custody.

Petitioner filed a direct appeal in the California Court of Appeals, Fifth Appellate District (the "5th DCA"), which affirmed the conviction, except for the sentence, in which the court ordered that the sentenced imposed for one of the assault charged be stayed and directed the trial court to amend the abstract of judgment to reflect that fact. (Doc. 45, Ex. A). Petitioner filed a petition for review in the California Supreme Court that was summarily denied. (Lodged Documents ("LD") 3; 4). On February 25, 2010, the trial court amended the abstract of judgment in compliance with the 5th DCA's ruling. (LD 5).

On January 11, 2011, Petitioner filed a state habeas petition in the Tulare County Superior Court, arguing that the trial court should have discharged his trial attorney; the petition was denied. (LD 6; 7). Petitioner then filed a habeas petition in the 5th DCA raising, for the first time, the issues of ineffective assistance of trial and appellate counsel; this petition was summarily denied. (LD 8; 9). Finally, Petitioner filed a habeas petition in the California Supreme Court, again arguing ineffective assistance of trial and appellate counsel. This petition, likewise, was denied. (LD 9; 10).


The Court adopts the Statement of Facts in the 5th DCA's unpublished decision[1]:

On April 23, 2007, about 5:30 p.m., Romaldo Mata, Alejandro Alvarez, and Andres Garcia were at a fast-food restaurant in Visalia. A young man Mata recognized, who was 15 or 16 years old, crossed the parking lot while Garcia was outside the restaurant and tried to put a black hood over his head, but the hood fell off. The young man turned around and looked at Garcia two or three times. Garcia went back into the restaurant. The young man "took off."
The young man returned with seven or eight other males. The oldest was 18 years old. They posted three young men at each door to the restaurant. One of the doors was locked. At the door closest to the drive-through, the young men opened the door and looked into the restaurant. Mata made eye contact with some of them and they left the front of the restaurant.
The young men went toward the parking lot of a grocery store. Mata recognized some of the young men. Alvarez, Garcia, and Mata entered Alvarez's Dodge Durango SUV and drove away. Alvarez drove, Mata sat in the front passenger seat, and Garcia sat in the back seat. The young men were standing in the parking lot. Two people were talking on their cell phones.
Appellant drove to the fast-food restaurant with his friend, Jose Garcia, in a Dodge Ram pickup truck. When appellant arrived, the young men in the grocery store parking lot were pointing toward Alvarez's SUV. One of the youths tried to get into appellant's pickup truck. Alvarez exited the parking lot and stopped at a stop sign on Chinowth Street.
Appellant was one car behind Alvarez's SUV. Appellant, who was driving, followed the SUV. Garcia sat in the passenger seat. When Alvarez came to Tulare Avenue, he made a right turn and then another right turn when he reached Linwood Street. Appellant continued to follow the SUV, running a red light at the intersection of Linwood and Noble.
Alvarez drove across a freeway overpass and stopped for a red light at the intersection of Linwood and Mineral King Avenue. Appellant was now directly behind the SUV. Appellant flashed the sign for the Norteño gang with one hand and extended the middle finger of his other hand. When the light turned green, Alvarez turned left onto Mineral King. Appellant followed the SUV, then accelerated quickly to keep up with Alvarez, who was also driving fast. Appellant caught up with the SUV, driving along the right side of it.
Mata heard gunshots and stuck his head out the window to see who was firing the gun. Mata saw appellant holding a short-barreled revolver. Appellant pointed the gun toward Mata and shot at him. Mata thought appellant fired three or four shots. A bullet hit the windshield of the SUV in the front of where Mata was sitting. Another bullet struck the right taillight. Alvarez slammed on the brakes and then drove away.

(Doc. 45, Exh. A, pp. 2-4).


I. Jurisdiction

Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n. 7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the United States Constitution. The challenged conviction arises out of the Tulare County Superior Court, which is located within the jurisdiction of this court. 28 U.S.C. § 2254(a); 28 U.S.C.§ 2241(d).

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320 (1997), cert. denied, 522 U.S. 1008, 118 S.Ct. 586 (1997); Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997), cert. denied, 520 U.S. 1107 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320 (holding the AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.

II. Standard of Review

A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless the petitioner can show that the state court's adjudication of his 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); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 U.S. at 412-413.

A state court decision is "contrary to" clearly established federal law "if it applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases, or "if it confronts a set of facts that is materially indistinguishable from a [Supreme Court] decision but reaches a different result." Brown v. Payton, 544 U.S. 133, 141 (2005), citing Williams, 529 U.S. at 405-406 (2000).

In Harrington v. Richter, 562 U.S. ___, 131 S.Ct. 770 (2011), the U.S. Supreme Court explained that an "unreasonable application" of federal law is an objective test that turns on "whether it is possible that fairminded jurists could disagree" that the state court decision meets the standards set forth in the AEDPA. The Supreme Court has "said time and again that an unreasonable application of federal law is different from an incorrect application of federal law.'" Cullen v. Pinholster, 131 S.Ct. 1388, 1410-1411 (2011). Thus, a state prisoner seeking a writ of habeas corpus from a federal court "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 of fairminded disagreement." Harrington, 131 S.Ct. at 787-788.

The second prong pertains to state court decisions based on factual findings. Davis v. Woodford, 384 F.3d at 637, citing Miller-El v. Cockrell, 537 U.S. 322 (2003). Under § 2254(d)(2), a federal court may grant habeas relief if a state court's adjudication of the petitioner's claims "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." Wiggins v. Smith, 539 U.S. at 520; Jeffries v. Wood, 114 F.3d at 1500. A state court's factual finding is unreasonable when it is "so clearly incorrect that it would not be debatable among reasonable jurists." Id.; see Taylor v. Maddox, 366 F.3d 992, 999-1001 (9th Cir. 2004), cert.denied, Maddox v. Taylor, 543 U.S. 1038 (2004).

To determine whether habeas relief is available under § 2254(d), the federal court looks to the last reasoned state court decision as the basis of the state court's decision. See Ylst v. Nunnemaker, 501 U.S. 979, 803 (1991); Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). "[A]lthough we independently review the record, we still defer to the state court's ultimate decisions." Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

The prejudicial impact of any constitutional error is assessed by asking whether the error had "a substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551 U.S. 112, 119-120 (2007)(holding that the Brecht standard applies whether or not the state court recognized the error and reviewed it for harmlessness). Furthermore, where a habeas petition governed by the AEDPA alleges ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), the Strickland prejudice standard is applied and courts do not engage in a ...

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