United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT
OF HABEAS CORPUS
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE.
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.
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)).
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.
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.
Court adopts the Statement of Facts in the Fifth DCA's
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
Appellant did not testify or introduce any evidence on his
Campos, 2015 WL 4641929, at *1-2.
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