United States District Court, E.D. California
FINDINGS & RECOMMENDATIONS
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
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.
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. (ECF No. 17.) After
carefully reviewing the record, the undersigned recommends
that petitioner’s claim alleging evidentiary error be
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.)
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
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.)
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.)
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.
for a Writ of Habeas Corpus
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).
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;
(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).
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)).
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).
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)).
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.
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.
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
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 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 ...