Gallien v. Gipson

          FINDINGS AND RECOMMENDATIONS

          EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE.

         Petitioner is a state prisoner proceeding without counsel with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges a judgment of conviction entered against him on November 14, 2008, in the Sacramento County Superior Court on charges of burglary, robbery, assault with a deadly weapon, and assault with a firearm, with findings that petitioner personally used and discharged a firearm and that he acted in concert in a home invasion. Petitioner seeks federal habeas relief on the following grounds: (1) the evidence is insufficient to support the jury finding that he intentionally discharged a firearm in connection with the robbery of two of the victims; (2) jury instruction error violated his right to due process; (3) his sentence of 53 years and four months in prison violates his rights under the Eighth and Fourteenth Amendments; (4) his trial and appellate counsel rendered ineffective assistance; and (5) the trial court violated his right to an impartial jury when it failed to excuse two potentially biased jurors. Upon careful consideration of the record and the applicable law, the court finds that petitioner's application for habeas corpus relief must be denied.

         I. Background

         In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:

As a result of defendant Mitchell Isiah Gallien's participation in a home invasion robbery, a jury found him guilty of burglary, three counts of robbery, assault with a deadly weapon, and assault with a firearm. The jury also found defendant personally had used and discharged the firearm, and had acted in concert in the home invasion. The trial court found defendant had a prior strike conviction for robbery and sentenced him to an aggregate term of 53 years four months in prison.

On appeal, defendant contends: (1) there was insufficient evidence to prove he discharged the firearm in connection with the robbery of two of the victims; (2) the jury was improperly instructed with CALCRIM No. 3261 on the "escape rule"; and (3) the disparity between his sentence and the sentences imposed upon his cohorts violates his state and federal due process and jury trial rights. We order a correction to the abstract of judgment, but otherwise affirm the judgment.

Facts and Proceedings

Around 11:30 a.m. on May 5, 2006, Adolfo Harnandis was with a friend at a fast food restaurant. While there, he approached Erica Casey and Stormi Bradford and invited them to a Cinco de Mayo party that night. They exchanged phone numbers and Harnandis gave them the address of the party.

After Harnandis left, Bradford told Casey that Harnandis would be an easy target for a robbery. Casey called her sister, defendant, and Deandre McLish, and the five of them spent the day together. Harnandis called Casey several times to confirm their presence at the party. Twenty minutes before leaving for the party, Casey questioned Harnandis and learned there were four people at the party at that time.

Casey's sister drove the others to the party, dropping defendant and McLish off around the corner. When the women arrived, there were four young men in the living room: Harnandis, Francisco Martinez, Macario Perea, and Eugenio Del Angel. After introductions, Casey's sister called defendant. Two minutes later, defendant and McLish came in through the front door and the three women left and got into the car that was parked outside.

Defendant was holding a gun and McLish had brass knuckles. Defendant pointed the gun at the young men and yelled at them to lie down and take everything out of their pockets. When Harnandis resisted, McLish hit him in the face and took his wallet and $60. McLish then hit Martinez twice in the face with the brass knuckles and took his wallet, along with $250 to $300. After also being hit in the face, Perea handed over approximately $1, 000. Del Angel gave the robbers over $100 to $200.

When defendant and McLish left the house, Harnandis followed them outside and saw them get into a car. Harnandis got into his truck and followed the car, jotting down the license plate number. Casey's sister was driving fast and Harnandis followed close behind. As they drove through the neighborhood, defendant leaned out the front passenger window and fired two shots at Harnandis. Harnandis decided not to follow the car any longer and went back to the house to check on his friends.

The jury found defendant guilty of residential burglary, robbery of Harnandis, robbery of Martinez, robbery of Perea, assault with a deadly weapon, and assault with a firearm. The jury also found defendant had acted in concert in a home invasion (Pen.Code, § 213, subd. (a)(1)(A); undesignated statutory references that follow are to the Penal Code) in connection with all three robberies, that he personally used (§ 12022.53, subd. (b)) and discharged (§ 12022.53, subd. (c)) a firearm in connection with all three robberies, and had personally used a firearm in connection with the assault with a firearm (§ 12022.5, subd. (a)(1)).

People v. Gallien, No. C061809, 2011 WL 302850, **1-2 (Cal.App. 3 Dist. Feb. 1, 2011).

         After petitioner's judgment of conviction was affirmed by the California Court of Appeal, he filed a petition for review in the California Supreme Court. Therein, he raised the same claims that he had raised on direct appeal. Resp't's Lodg. Doc. 9. By order dated April 13, 2011, the petition for review was summarily denied. Resp't's Lodg. Doc. 10.

         Petitioner subsequently filed a petition for writ of habeas corpus in the Sacramento Superior Court. Resp't's Lodg. Doc. 11. Therein, he claimed that his trial and appellate counsel rendered ineffective assistance and that juror bias violated his right to a fair trial. Id. On March 13, 2012, the Superior Court denied those claims in a reasoned decision. Resp't's Lodg. Doc. 12. On May 2, 2012, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, raising the same claims. Resp't's Lodg. Doc. 13. By order dated July 13, 2012, that petition was summarily denied.^[1] Resp't's Lodg. Doc. 15. Petitioner thereafter filed a petition for ///// a writ of habeas corpus in the California Supreme Court. Resp't's Lodg. Doc. 16. That petition was also summarily denied. Resp't's Lodg. Doc. 17.

         II. Standards of Review Applicable to Habeas Corpus Claims

         An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S. ___, ___, 131 S.Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

         Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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.

         For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the last reasoned state court decision. Thompson v. Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, ___ U.S. ___, 132 S.Ct. 38 (2011); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Circuit court precedent "may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)). However, circuit precedent may not be "used to refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has not announced." Marshall v. Rodgers, 133 S.Ct. 1446, 1450 (2013) (citing Parker v. Matthews, 132 S.Ct. 2148, 2155 (2012) (per curiam)). Nor may it be used to "determine whether a particular rule of law is so widely accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court, be accepted as correct." Id. Further, where courts of appeals have diverged in their treatment of an issue, it cannot be said that there is "clearly established Federal law" governing that issue. Carey v. Musladin, 549 U.S. 70, 77 (2006).

         A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634');">538 U.S. 634, 640 (2003). Under the "unreasonable application" clause of § 2254(d)(1), 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.^[2] Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). In this regard, 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. Rather, that application must also be unreasonable." Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a ‘firm conviction' that the state court was ‘erroneous.'"). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. ___, ___, 131 S.Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, "[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner 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 for fairminded disagreement." Richter, 131 S.Ct. at 786-87.

         If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").

         The court looks to the last reasoned state court decision as the basis for the state court judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). "When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Richter, 131 S.Ct. at 784-85. This presumption may be overcome by a showing "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). Similarly, when a state court decision on a petitioner's claims rejects some claims but does not expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that the federal claim was adjudicated on the merits. Johnson v. Williams, ___ U.S. ___, ___, 133 S.Ct. 1088, 1091 (2013).

         Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes, 336 F.3d at 853. Where no reasoned decision is available, the habeas petitioner still has the burden of "showing there was no reasonable basis for the state court to deny relief." Richter, 131 S.Ct. at 784.

         A summary denial is presumed to be a denial on the merits of the petitioner's claims. Stancle v. Clay, 692 F.3d 948, 957 & n. 3 (9th Cir. 2012). While the federal court cannot analyze just what the state court did when it issued a summary denial, the federal court must review the state court record to determine whether there was any "reasonable basis for the state court to deny relief." Richter, 131 S.Ct. at 784. This court "must determine what arguments or theories ... could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court." Id. at 786. The petitioner bears "the burden to demonstrate that ‘there was no reasonable basis for the state court to deny relief.'" Walker v. Martel, 709 F.3d 925, 939 (9th Cir. 2013) (quoting Richter, 131 S.Ct. at 784).

         When it is clear, however, that a state court has not reached the merits of a petitioner's claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).

         III. Petitioner's Claims

         A. Sufficiency of the Evidence

         California Penal Code § 12022.53(c) provides: "Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally and intentionally discharges a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 20 years." In his first ground for relief, petitioner claims that the evidence is insufficient to support the jury finding that he intentionally discharged a firearm, within the meaning of this code section, with respect to the robberies of Martinez and Perea. ECF No. 1 at 4. He argues that in order to demonstrate the firearm enhancement, the prosecution was required to prove by substantial evidence that: "(1) petitioner personally discharged the firearm during the commission of each robbery; and (2) he intended to discharge the firearm." Id. at 11. Petitioner argues that the evidence showed he had already completed the robberies of both Martinez and Perea before he discharged the firearm at Harnandis. Id. at 11-14.

         Petitioner notes that he was not anywhere near the vicinity of Martinez or Perea at the time he fired the gun. Id. at 14. Therefore, he had reached "a place of temporary safety as to Martinez and Perea." Id. Petitioner contends that "each of three robberies as to each of three victims was a separately charged crime, and cannot be conflated into a single crime for purposes of the enhancement." Id. at 11. He concludes that "there was no substantial evidence petitioner discharged a firearm while robbing either Martinez or Perea, and the true finding on the enhancements violate petitioner's federal and state due process rights." Id. at 11, 20. See also ECF No. 22 at 4-5.

         The California Court of Appeal rejected these arguments, reasoning as follows:

Defendant contends there was insufficient evidence to support the enhancements for discharging a firearm in the commission of the robberies of Martinez and Perea because, he contends, those robberies were complete by the time he fired his gun at Harnandis. We disagree.

Section 211 defines robbery as "the felonious taking of personal property in the possession of another, from his person or immediate presence . . . ." However, "the crime of robbery is not confined to the act of taking property from victims. The nature of the crime is such that a robber's escape with his loot is just as important to the execution of the crime as obtaining possession of the loot in the first place. Thus, the crime of robbery is not complete until the robber has won his way to a place of temporary safety. [Citations.]" (People v. Carroll (1970) 1 Cal.3d 581, 585.) Here, because Harnandis was still pursuing defendant, defendant had not yet made his way to a place of temporary safety at the time he fired his gun. Accordingly, the shooting occurred during the ongoing commission of the robberies.

Defendant contends that, because neither Martinez nor Perea chased him outside of the house, when he reached the car, he had reached a place of temporary safety as to them. Not surprisingly, defendant has cited no authority for the proposition that the victim must be chasing the perpetrator for application of the escape rule. To the contrary, regardless of who was chasing him, defendant had not reached a place of temporary safety while still in flight. (People v. Johnson (1992) 5 Cal.App.4th 552, 559.) Accordingly, the commission of the robberies of Martinez and Perea was continuing when defendant fired shots at the pursuing Harnandis.

Nor must the gun use be directed at the victim of the robbery for it to be used during the commission of that robbery. People v. Fierro (1991) 1 Cal.4th 173, 226-227, is instructive. There, the defendant first robbed the wife and then, before leaving, murdered and robbed her husband. Defendant argued the gun use finding should be stricken as to the robbery of the wife, because he did not display or personally use the gun during that robbery. In upholding the finding, the California Supreme Court concluded that "the jury could reasonably have inferred that defendant used the gun against the murder victim to facilitate his escape or to prevent his identification as the robber of [wife]." (Fierro, supra, 1 Cal .4th at p. 227, disapproved on a different point in People v. Letner and Tobin (2010) 50 Cal.4th 99.) The high court explained that "[i]n light of the legislative purpose to discourage the use of firearms, it would appear to be immaterial whether the gun use occurred during the actual taking or against the actual victim, so long as it occurred ‘in the commission' of the robbery. (§ 12022.5, subd. (a).)" (Fierro, supra, 1 Cal.4th at p. 226, italics added.)

Here, the evidence supports the finding that defendant discharged the gun at Harnandis to aid his escape from all three victims after all three robberies. Thus, the true findings on the firearm enhancements with respect to the robberies of Martinez (count 3) and Perea (count 4) are supported by the evidence.

Gallien 2011 WL 302850, at **2 -3.

         1. Applicable Legal Standards

         The Due Process Clause "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). There is sufficient evidence to support a conviction if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). "[T]he dispositive question under Jackson is ‘whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.'" Chein v. Shumsky, 373 F.3d 978, 982 (9th Cir. 2004) (quoting Jackson, 443 U.S. at 318). Put another way, "a reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury." Cavazos v. Smith, ___ U.S. ___, 132 S.Ct. 2, *4 (2011). Sufficiency of the evidence claims in federal habeas proceedings must be measured with reference to substantive elements of the criminal offense as defined by state law. Jackson, 443 U.S. at 324 n.16.

         In conducting federal habeas review of a claim of insufficient evidence, "all evidence must be considered in the light most favorable to the prosecution." Ngo v. Giurbino, 651 F.3d 1112, 1115 (9th Cir. 2011). "Jackson leaves juries broad discretion in deciding what inferences to draw from the evidence presented at trial, " and it requires only that they draw "‘reasonable inferences from basic facts to ultimate facts.'" Coleman v. Johnson, ___ U.S. ___, 132 S.Ct. 2060, 2064 (2012) (per curiam) (citation omitted). "‘Circumstantial evidence and inferences drawn from it may be sufficient to sustain a conviction.'" Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995) (citation omitted).

         "A petitioner for a federal writ of habeas corpus faces a heavy burden when challenging the sufficiency of the evidence used to obtain a state conviction on federal due process grounds." Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). Because this case is governed by the AEDPA, this court owes a "double dose of deference" to the decision of the state court. Long v. Johnson, 736 F.3d 891, 896 (9th Cir. 2013) (quoting Boyer v. Belleque, 659 F.3d 957, 960 (9th Cir. 2011), cert. Denied ___ U.S. ___, 132 S.Ct. 2723 (2012)). See also Johnson, 132 S.Ct. at 2062 ...