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Orduno v. Spearman

United States District Court, E.D. California

April 6, 2017

WALTER ORDUNO, Petitioner,
M.E. SPEARMAN, Respondent.


         Petitioner Walter Orduno is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In the petition, Petitioner asserts that he was improperly convicted of three separate counts of resisting an executive officer under California Penal Code section 69.

         For the reasons discussed herein, the Court finds denial of the petition for writ of habeas corpus is warranted.

         I. BACKGROUND

         On January 22, 2014, Petitioner was convicted by a jury in the Kern County Superior Court of: child abuse (lesser-included offense to count 1); assault (lesser-included offense to count 2); evading a peace officer: reckless driving (count 3); evading a peace officer: driving a vehicle in opposite direction of traffic (count 4); three counts of assault on a peace officer with a deadly weapon (counts 5-7); three counts of resisting an executive officer by the use of force or violence (counts 8-10); transportation of methamphetamine (count 11); and obstructing a peace officer (count 12). (2 CT[1] 504-27). Petitioner was sentenced to an imprisonment term of thirteen years. People v. Orduno, No. F068962, 2015 WL 8053240, at *1-2 (Cal.Ct.App. Dec. 7, 2015). On December 7, 2015, the California Court of Appeal, Fifth Appellate District reversed Petitioner's conviction on count 11, directed the trial court to stay the sentence on count 4, and remanded the case for resentencing. The judgment was otherwise affirmed. Id. at *5. The California Supreme Court denied Petitioner's petition for review on February 17, 2016. (LDs[2]18, 19).

         On August 10, 2016, Petitioner filed the instant federal petition for writ of habeas corpus. (ECF No. 1). Respondent has filed an answer to the petition. (ECF No. 12). The parties have consented to the jurisdiction of the United States Magistrate Judge. (ECF Nos. 11, 16).



The chase began at 2:57 a.m. on July 21, 2013, when Bakersfield Police Officers Robert “Joe” Woods and Jess Beagley saw a white Ford Crown Victoria, driven by Orduno, speeding while traveling eastbound on Stockdale Highway. Officer Woods gave chase and, after hitting a speed of 100 miles per hour, finally caught up with Orduno as he turned right onto South Real Road. After making the turn, Orduno pulled over to the curb. Israel Lopez, who was sitting in the Crown Victoria's front passenger seat, got out of the car. The officers activated the overhead flashing lights and siren on their unmarked patrol car, but Orduno sped away, heading southbound on South Real Road. Upon crossing Elcia Drive, he slowed down. Officer Beagley saw a passenger in the rear seat, Norma Hernandez-Alvarado, remove a baby from a car seat, open the back passenger-side door, and stick out her foot. Orduno started moving the car forward, and Hernandez-Alvarado, who was holding the baby, fell to the ground outside the car. Orduno quickly sped away. Officer Woods again gave chase, while Officer Beagley stayed behind to attend to Lopez and Hernandez-Alvarado.
At this point, Officer Woods activated a “Code 3 response, ” meaning that all the patrol car's lights and sirens were in operation. Other officers in marked police cars, with lights and sirens activated, also joined the chase as Orduno drove eastbound on State Route 58. Orduno drove at speeds of up to 100 miles per hour, running several red lights along the way. He finally exited on Union Avenue, but, at the top of the exit ramp, he turned around and drove the wrong way down the same ramp, toward the patrol cars that were pursuing him. He accelerated directly at a patrol car driven by Officer Jason Felgenhauer, with Officer Robert Pair in the passenger seat. Officer Felgenhauer had to “violently maneuver” his patrol car to avoid a head-on collision, ending up on the shoulder of the road. Orduno then drove directly at a patrol car driven by Officer Martin Heredia, who testified that Orduno changed lanes to do so; Officer Heredia also had to pull to the side to avoid being hit. Orduno continued driving in a westbound direction on eastbound State Route 58, with multiple patrol cars in pursuit. A short time later, the Crown Victoria veered toward State Route 58's center median and stopped against the curb. By the time the officers reached the car, Orduno had run away. Officer Woods searched the car and found a small plastic baggie containing crystal methamphetamine. The parties later stipulated that the methamphetamine constituted a usable amount.
Other Bakersfield police officers were dispatched to the area to set up a perimeter, including Officers Travis Brewer, Steven Glenn, and Thomas Hernandez, who brought his police dog, Kane. An onlooker told the officers he saw Orduno run toward Haybert Court. Kane alerted to a human scent at 215 Haybert Court. Officer Hernandez commanded Kane to search the backyard and momentarily Orduno called out, “[Y]our dog has me.” Kane had found Orduno hiding under a table and had bitten his right shoulder and grabbed his shirt. At Officer Hernandez's direction, Orduno crawled out and lay on his stomach. However, once Officer Hernandez took Kane away, Orduno tried to get back under the table. Officers Brewer and Glenn attempted to stop him but he struggled violently and the officers were unable to control him. Orduno was able to reach into his pocket, where Officer Glenn had felt a knife. Officer Christopher Moore came into the backyard to assist the officers. He saw Orduno “violently resisting” the officers who were trying to handcuff him. However, as he tried to help push Orduno down to the ground, Orduno bucked forcefully, causing Officer Moore to be flung off his back. Officer Nathan Anderberg came to help and deployed his Taser. Orduno was then taken into custody. A folding buck knife was discovered in his pants pocket during a subsequent search.

Orduno, 2015 WL 8053240, at *1-2.


         A. Standard of Review

         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 or 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 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the United States Constitution. The challenged convictions arise out of the Kern County Superior Court, which is located within the Eastern District of California. 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); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.

         Under the AEDPA, relitigation of any claim adjudicated on the merits in state court is barred unless a petitioner can show that the state court's adjudication of his 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); Davis v. Ayala, 135 S.Ct. 2187, 2198 (2015); Harrington v. Richter, 562 U.S. 86, 97-98 (2011); Williams, 529 U.S. at 413. Thus, if a petitioner's claim has been “adjudicated on the merits” in state court, the “AEDPA's highly deferential standards” apply. Ayala, 135 S.Ct. at 2198. However, if the state court did not reach the merits of the claim, the claim is reviewed de novo. Cone v. Bell, 556 U.S. 449, 472 (2009).

         In ascertaining what is “clearly established Federal law, ” this Court must look to the “holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision.” Williams, 529 U.S. at 412. In addition, the Supreme Court decision must “‘squarely address[] the issue in th[e] case' or establish a legal principle that ‘clearly extend[s]' to a new context to the extent required by the Supreme Court in . . . recent decisions”; otherwise, there is no clearly established Federal law for purposes of review under AEDPA and the Court must defer to the state court's decision. Moses v. Payne, 555 F.3d 742, 754 (9th Cir. 2008) (alterations in original) (quoting Wright v. Van Patten, 552 U.S. 120, 125, 123 (2008)).

         If the Court determines there is clearly established Federal law governing the issue, the Court then must consider whether the state court's decision was “contrary to, or involved an unreasonable application of, [the] clearly established Federal law.” 28 U.S.C. § 2254(d)(1). A state court decision is “contrary to” clearly established Supreme Court precedent if it “arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.” Williams, 529 U.S. at 413. A state court decision involves “an unreasonable application of[] clearly established Federal law” if “there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme Court's] precedents.” Richter, 562 U.S. at 102. That is, a petitioner “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.” Id. at 103.

         If the Court determines that the state court decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, ” and the error is not structural, habeas relief is nonetheless unavailable unless it is established that the error “had substantial and injurious effect or influence” on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 ...

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