United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
F. BRENNAN UNITED STATES MAGISTRATE JUDGE.
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.
unpublished memorandum and opinion affirming petitioner's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
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).
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.
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. 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.
Standards of Review Applicable to Habeas Corpus
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).
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;
(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.
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).
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. 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.
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.").
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).
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.
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).
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).
Sufficiency of the Evidence
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.
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.
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
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.
Applicable Legal Standards
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.
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).
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 ...