United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS TO DENY PETITION FOR WRIT OF HABEAS CORPUS (Doc. 1) ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN 21 DAYS
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 2011 of second degree murder and use of a firearm. (Clerk's Transcript ("CT") p. 177). He was sentenced by the Tulare county Superior court to an indeterminate sentence of 15 years-to-life plus 25 years-to-life. Id. Petitioner filed a direct appeal in the California Court of Appeals, Fifth Appellate District (the "5th DCA"), which affirmed the conviction. (Doc. 18, Ex. A). He filed a petition for review in the California Supreme Court that was summarily denied. (Lodged Document ("LD") 11).
The Court adopts the Statement of Facts in the 5th DCA's unpublished decision:
Estrada and his cousin, Chris Navarro, hosted a party at their house in Farmersville on April 3, 2010, around 10:00 p.m. Estrada and many of the guests drank beer and smoked marijuana. The victim, Aising Saesee, lived down the street and came to the party uninvited.
One of the party guests testified Saesee and Navarro were talking to one another as she was leaving. A recording of Estrada's police interrogation was admitted into evidence and played for the jury. When the police interrogated Estrada, he stated that Saesee told Navarro "he was going to get his homies on us because [they had] marijuana plants, " at which point Navarro told Saesee to leave the party. Estrada also stated Saesee told them he was going to call his "OT's, " and that he was going to "spray" them because Estrada was wearing red.
Toward the end of the night Alex Aparicio (Alex) and his girlfriend were arguing in the front yard. Saesee approached Alex to ask him for a cigarette and told them they shouldn't be arguing. Later, Alex's girlfriend left the party, but he remained outside. At some point, Alex tried to get back into the house, but the door was locked. He tried knocking on the door and calling his friends in the house, but no one answered. Saesee also tried knocking on the door, and Alex told him that no one was answering.
Meanwhile, Estrada, Navarro, Monique Hernandez, and Alex's brother Sergio Aparicio (Sergio) were all inside the house. Sergio testified they heard somebody knocking, but soon after it sounded like somebody was kicking the door. Estrada looked to see who was knocking. He told the others that he did not know who it was and "maybe [the person knocking is] an OT or something." After Estrada mentioned the person at the door might be an OT, everybody started getting scared. Sergio and Navarro each called the police.
Estrada told police in the interrogation that he texted his friend Daniel Martinez, a Norteño gang member, telling him that an OT was at the party and "getting crazy." Estrada also asked Martinez to bring him a gun. Estrada met Martinez a block away from the house to pick up a revolver. Then Estrada walked up the street in front of the house and yelled at Saesee. Alex testified that at that point Saesee was across the street from the house and no longer knocking on the door. Alex stated Estrada fired the gun once into the air. After the first shot, Alex hid behind a pillar in front of the house.
Estrada told police he yelled at Saesee to get away from the house, at which point Saesee put his hand in his pocket and walked away from the house. Estrada stated he felt scared as Saesee put his hand in his pocket. Estrada fired one shot at Saesee and missed. Saesee turned and ran from Estrada. Estrada told police he got close to Saesee, "shot him" and "emptied the clip on him." Saesee fell to the ground after the second shot, and Estrada continued shooting him in the back as he fell. Saesee died from five gunshot wounds to the back.
Estrada told investigators he shot Saesee because "he put a threat to my family.... He put a threat to all of us and... on my son.... He scared me really good. Cause I know how OT's are...."
(Doc. 18, Exh. A, pp. 1-2).
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 ...