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Campos v. Sherman

United States District Court, E.D. California

April 18, 2017

ALBERT ESTRADA CAMPOS, JR., Petitioner,
v.
STUART SHERMAN, Respondent.

          FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT OF HABEAS CORPUS

          JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE.

         Petitioner is currently serving an indeterminate sentence of 23 years to life for his conviction of attempted murder and assault with a deadly weapon. Petitioner has filed this habeas action claiming: 1) Defense counsel rendered ineffective assistance by failing to request pinpoint jury instructions on provocation; and 2) The trial court erred by failing to properly award prior custody credits against his sentence. As discussed below, the Court finds the claims to be without merit and recommends the petition be DENIED.

         I. PROCEDURAL HISTORY

         Petitioner was convicted in the Tulare County Superior Court on August 2, 2013, of attempted murder (Cal. Penal Code §§ 187(a)/664) and assault with a deadly weapon (Cal. Penal Code § 245(a)(1). People v. Campos, No. F068536, 2015 WL 4641929, at *1 (Cal.Ct.App. Aug. 5, 2015). The jury also found true allegations that he acted with premeditation and deliberation, personally used a deadly weapon, and personally inflicted great bodily injury. Id. In addition, he admitted special allegations that he had sustained a prior serious felony conviction within the meaning of California's three strikes law (Cal. Penal Code §§ 667(b)-(i), 1170.12(a)-(d)), and that he had been convicted of three prior serious felony offenses resulting in prison terms (Cal. Penal Code § 667.5(b)). Id.

         Petitioner appealed to the California Court of Appeal, Fifth Appellate District (“Fifth DCA”). The Fifth DCA affirmed the judgment on August 5, 2015. Id. Petitioner filed a petition for review in the California Supreme Court, and the petition was summarily denied on October 14, 2015. Id.

         On February 26, 2016, Petitioner filed the instant petition for writ of habeas corpus in this Court. (Doc. No. 1). Respondent filed an answer on May 27, 2016. (Doc. No. 18). Petitioner did not file a traverse.

         II. FACTUAL BACKGROUND

         The Court adopts the Statement of Facts in the Fifth DCA's unpublished decision[1]:

Appellant is deaf and he communicates primarily through sign language, although he attempts verbal communication at times. On June 2, 2012, he was in the process of moving out of a house which his father owned in Visalia, California. Appellant and his ex-girlfriend, Genevieve Perez, had recently ended their relationship and Perez was also moving to a new residence with their children. Appellant's sister and her fiancé, along with a common friend, were there moving into the residence that appellant and Perez were vacating. Appellant's father, Albert Campos, Sr., and his wife, Dina Campos, were there to help. Appellant appeared upset that day.
During the moving process, Perez parked her vehicle in front of the next door neighbor's driveway. When she was preparing to leave Perez apologized to the neighbor, Jose Rodriguez, who indicated it was not a problem. Appellant walked over and asked Perez why she was talking to Rodriguez. Perez believed appellant thought she was flirting.
Appellant approached Rodriguez and began yelling, asking why Rodriguez was talking to Perez. Rodriguez, who understands and can communicate a little in sign language, indicated he had not done anything. Both appellant and Rodriguez began to argue near Rodriguez's house, and they both appeared upset or angry. Both men used sign language to communicate, although people also heard appellant making loud sounds. Both men acted as if they might hit the other. Witnesses estimated they argued from either a few minutes or up to 10 minutes before they separated and Rodriguez walked into his house.
Appellant walked into his residence where Dina saw him appearing very angry. She observed appellant go into the back of the house and he reappeared holding a knife that was approximately 10 inches long. Appellant went back outside.
Appellant sat in his truck across the street. At some point Rodriguez came out of his house and walked onto the property belonging to appellant's father. Rodriguez walked over to Campos, Sr., and extended his hand, but Campos, Sr., refused to take Rodriguez's hand over a concern it would look disrespectful towards his son following their argument. Campos, Sr., backed away.
Holding a metal pipe, appellant approached Rodriguez and struck him with the metal pipe around Rodriguez's ribs or hip. Campos, Sr., grabbed the metal pipe, and appellant and Rodriguez began to fistfight. Each exchanged blows and appellant fell to the ground with Rodriguez on top of him.
While on the ground, appellant produced a knife and made upward thrusting motions. Rodriguez sustained multiple stab wounds to his face, midsection, and thigh. He was bleeding.
Dina summoned law enforcement. Rodriguez attempted to drive himself to a hospital, but on the way he ran a red light and collided with a police officer who was responding to Dina's 911 call. Rodriguez was found unconscious and bleeding profusely from his face and head. He was hospitalized and underwent multiple surgeries.
A short time after Rodriguez drove away, law enforcement located appellant at the same residence and arrested him without incident. Appellant was holding a fixed blade knife, which law enforcement collected. Appellant told the arresting officer he acted in self-defense.
Law enforcement interviewed appellant, which was videotaped with audio and played for the jury. In the interview, appellant indicated he thought Rodriguez was “making eyes” at Perez and tried to hit on her. While sitting in his truck, he saw Rodriguez approach his father and appellant had previously warned Rodriguez not to come onto his property. Appellant indicated he hit Rodriguez to protect his father and he thought Rodriguez might have had a screwdriver with him. Appellant admitted he never saw Rodriguez holding or using a screwdriver during their fight. He stated Rodriguez is much bigger than he is and he acted in self-defense.
Appellant did not testify or introduce any evidence on his own behalf.

Campos, 2015 WL 4641929, at *1-2.

         III. DISCUSSION

         A. Jurisdiction

         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, 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 n. 7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the United States Constitution. The challenged conviction arises out of the ...


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