Morales v. Hedgpeth

          FINDINGS & RECOMMENDATIONS

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE

         Introduction

         Petitioner is a state prisoner, proceeding through counsel, with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2009 conviction for attempted murder and assault with a firearm, personal use and discharge of a firearm, and infliction of great bodily injury. Petitioner is serving a sentence of 32 years to life.

         This action is proceeding on the amended petition filed August 22, 2012, as to the claim that the trial court erred by excluding evidence of third party culpability.^[1] (ECF No. 17.) After carefully reviewing the record, the undersigned recommends that petitioner’s claim alleging evidentiary error be denied.

         Procedural Background

         The amended petition raised four claims: 1) the trial court erred by excluding evidence of third party culpability; 2) Brady error; 3) ineffective assistance of trial counsel; and 4) ineffective assistance of appellate counsel. (ECF No. 17.)

         On November 17, 2013, respondent filed a motion to dismiss on grounds that this action was barred by the statute of limitations. (ECF No. 17.) On June 17, 2013, the undersigned recommended that respondent’s motion be granted. (ECF No. 31.)

         On September 17, 2013, the Honorable Lawrence K. Karlton issued an order adopting the June 17, 2013 findings and recommendations in part. (ECF No. 34.) Judge Karlton found that claim one was not barred by the statute of limitations and denied respondent’s motion to dismiss this claim. (Id.) As for the remaining claims, Judge Karlton granted the motion to dismiss without prejudice to petitioner’s right to seek reconsideration as set forth in the order. (Id.) In particular, Judge Karlton referred this action to the Office of the Federal Defender for the purpose of determining whether evidence existed to support a claim of actual innocence which would overcome the statute of limitations bar. (Id.)

         On June 6, 2014, through counsel, petitioner filed a motion for an evidentiary hearing in support of his claim for actual innocence and a motion for witness immunity. (ECF Nos. 45, 46.) On December 17, 2014, the undersigned recommended that petitioner’s motions for an evidentiary hearing and witness immunity be denied. (ECF No. 69.) On May 1, 2015, the Honorable Troy L. Nunley adopted the findings and recommendations. (ECF No. 75.)

         On August 6, 2015, respondent filed an answer to petitioner’s remaining claim alleging that the trial court erred in excluding evidence of third party culpability. (ECF No. 80.) On November 10, 2015, respondent filed a reply to the answer and exhibits in support of the reply. (ECF Nos. 86, 87.)

         Standards for a Writ of Habeas Corpus

         Under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), 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 Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

         Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings 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).

         Under section 2254(d)(1), a state court decision is “contrary to” clearly established United States Supreme Court precedents if it applies a rule that contradicts the governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at different result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).

         Under the “unreasonable application” clause of section 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. Williams, 529 U.S. at 413. 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.” Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (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.’”) (internal citations omitted). “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, 131 S.Ct. 770, 786 (2011).

         The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). If there is no reasoned decision, “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.” Harrington, 131 S.Ct. at 784-85. That presumption may be overcome by a showing that “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)).

         “When a state court rejects a federal claim without expressly addressing that claim, a federal habeas court must presume that the federal claim was adjudicated on the merits - but that presumption can in some limited circumstances be rebutted.” Johnson v. Williams, 133 S.Ct. 1088, 1096 (Feb. 20, 2013). “When the evidence leads very clearly to the conclusion that a federal claim was inadvertently overlooked in state court, § 2254(d) entitles the prisoner to” de novo review of the claim. Id., at 1097.

         Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, the federal court conducts an independent review of the record. “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 v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). Where no reasoned decision is available, the habeas petitioner has the burden of “showing there was no reasonable basis for the state court to deny relief.” Harrington, 131 S.Ct. at 784. “[A] habeas court must determine what arguments or theories supported or, . . . 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 this Court.” Id. at 786.

         Factual Background

         The opinion of the California Court of Appeal contains a factual summary. After independently reviewing the record, the undersigned finds this summary to be accurate and adopts it herein:

         BACKGROUND

The People’s case was straightforward: The victim had had a long-running feud with the Morales family, and eventually defendant, a younger son in that family, shot the victim. The defense theory was that the victim was drunk and could not identify the person who shot him, but used the occasion of being shot to blame defendant, as part of that family feud. The only evidence that defendant was the shooter came from the victim’s statements and testimony, although the victim’s daughter made a statement corroborating defendant’s presence on the occasion of the shooting.

The victim testified he knew defendant, in part because defendant’s older brother Steven had had an affair with the victim’s ex-wife, which caused the victim and his ex-wife to divorce. This affair had made the victim angry, and after the victim made criminal threats against his wife, which he claimed were unrelated to the affair, she obtained a restraining order, and their children went to live with the Morales family for several months.

After the victim and his ex-wife reconciled for a time, Steven Morales ran them off the road with his car, with the aid of his brother, Johnnie Morales, as a result of which Steven Morales was sent to prison. The victim’s stepdaughter had had children with Hector Morales, another brother of defendant, and the victim disapproved of this relationship. The victim testified that about four or five years prior, he got into a fistfight with several members of the Morales family, but not with defendant, and that Steven Morales “shot at me that day twice.” The victim testified he was “still feuding to this day” with the Morales family.

On the evening of January 25, 2006, the victim was on his porch, drinking with friends, when defendant, a “Hispanic, ” arrived with a group of about six or seven Black male teenagers. After words were exchanged and the victim threatened to sic his dog on them, the group left. However, defendant threatened to come back in 20 minutes and shoot the victim. The victim called his ex-wife and told her defendant had threatened to shoot him and said, “If anything happens to me, make sure my family gets justice.” Later, defendant returned and called out to the victim. The victim saw defendant had his hands through the fence, holding something. The victim turned away, and was shot in the back.

The victim testified that in the exchange of words he had with defendant prior to the shooting, he referred to defendant’s brother Steven as defendant’s “sister.” He also testified that when he first saw the group of teenagers, with one Hispanic standing alone, he called out that he knew “that’s not Morales, ” but he did not mean he knew it was not defendant, he meant if that person was a Morales family member, there would “be some problems right there[.]” The victim told the first officer on the scene that defendant was the shooter, and the next day the victim identified defendant from a photographic lineup. The victim described defendant to the officer as a “male Hispanic, 14 to 15 years old, 120 pounds, wearing all black clothing.” The victim also gave this ...