United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
a state prisoner, is proceeding pro se with a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254. He
challenges his 2013 conviction for stalking, wiretapping,
burglary, and other offenses, for which he was sentenced to a
total prison term of nineteen years and four months. (ECF No.
1 (“Ptn.”) at 1.) Respondent has filed an answer
(ECF No. 19), and petitioner has filed a traverse (ECF No.
21). Upon careful consideration of the record and the
applicable law, the undersigned will recommend that the
petition be denied.
affirmation of the judgment on appeal, the California Court
of Appeal, Third Appellate District, recounted the facts
underlying petitioner's conviction as follows:
Tomasa Duenas met defendant through the social network My
Space. They became a couple in April 2007; she lived in
Sacramento and defendant was in Berkeley. In May 2009,
defendant moved to New York to complete a master's degree
at Columbia University. Duenas broke up with defendant in
January 2010 because she could not see the relationship going
anywhere. They stayed in touch and had a cordial
Around February or March, she decided to give defendant
another chance. He came to visit her at her residence in
March. During that visit, without her knowledge, he installed
two spyware programs on her computer. The first, Spector Pro,
recorded computer activity such as e-mail, chats, instant
messaging, and websites visited. The second, eBlaster,
e-mailed the records of the computer activity to a designated
address. The activity reports were e-mailed to defendant.
In April, defendant insisted on coming out to help Duenas
move. He gave her a gift, a wireless Internet router. He set
it up, providing the router name, East Oakland, and the
password. Duenas had Internet service through Comcast; the
wireless router connected to the modem by cable.
Defendant graduated in May and returned to Sacramento. He
stayed with Duenas a few days a week; the rest of the time he
stayed with his family in Watsonville. On July 16, they
argued and broke up.
On July 23, Duenas noticed her tickets to a concert were
missing from her apartment, and thought that defendant had
taken them. She sent him a text message, asking if he had a
way to get in her apartment. She replaced the tickets and
went to the concert. Defendant also was at the concert, and
texted her with a specific dedication before a particular
song. The police later found a photograph of Duenas's
calendar, taken July 23, in defendant's possession.
A few days later, Duenas returned home from work early and
found defendant in her bedroom. She asked him to leave and he
did. On July 31, Duenas met Victor Garcia. The next day
Garcia gave her a note and a music CD. She put the note in a
shoe box with other keepsakes, but later noticed the note was
On approximately August 1, Duenas went to defendant's new
apartment and made dinner for him. She spent the night and
they were intimate. The next day, defendant went to
Duenas's and tried to initiate sex. She said no and told
him that the night before had been a mistake. Defendant
persisted and Duenas gave in. On August 3, Duenas came home
and found defendant by her bed. At first, he refused to
leave, saying he wanted to talk, but he eventually left. She
found his water bottle in the closet and texted him, asking
how long he had been in her closet. He asked if he could come
get the bottle. Although she said no, defendant showed up and
pushed his way into her apartment. Defendant followed her
into the bedroom and kept saying “get naked” in
Spanish. He tried to pull her shorts down. She began to cry
and defendant kept pulling at her shorts until he got them
off. In a demanding tone, he told her to “show me how
you're going to give it to Victor.” She kept
telling him to leave and defendant responded that if she
forced him to leave he would publish nude pictures he had of
her. She said she would sue him and he replied he had nothing
to lose. Duenas spent 30 minutes in the bathroom crying.
Defendant tried to bargain with her; if she would attend
counseling to work on her “issues, ” he would
leave her alone. Eventually defendant began a
“rant” about how he was sorry and his jealousy
was due to his insecurities. He finally left after she told
him he had lost her forever.
Duenas had her apartment manager change her apartment's
locks. She found the eBlaster software on her computer and
had an Apple computer technician remove it. She also changed
the password on her computer. On August 6, at the urging of
friends, Duenas reported defendant to the police, but did not
ask to have charges filed.
The stalking continued. On August 24, Duenas could not log in
to her computer because of password difficulties and
discovered the eBlaster software was back on her computer.
She also noticed that her stuffed animals were rearranged and
a box of mementos was missing. Also missing were a letter
requesting to be let out of her lease and the police report
she had filed. A photograph of a wedding invitation on her
refrigerator, taken that day, was later found in
defendant's possession. On August 27, Duenas found two
cameras, one hidden under her stuffed animals and the other
under the dresser. These cameras had recorded video with
sound. Duenas contacted the police, who suggested she call
defendant and ask him about the cameras. He said that was
“a loaded question, ” but did not deny he put
them in her apartment.
Duenas went to stay with a friend. Defendant took numerous
photographs of Duenas while she was in the bathroom at her
friend's-apparently from immediately outside the
apartment looking in. The friend heard noises at night and
asked Duenas to leave due to concerns about safety. Duenas
first relocated to a house in Folsom and then to a house on
Castro Way that had an alarm system. She did not tell her
friends where she was living. She obtained a restraining
order against defendant.
On September 26, Garcia visited her and spent the night. They
were intimate on several occasions that night and disposed of
used condoms in the bathroom trash. Duenas had waxed her
bikini line before his visit. The used wax strips and condoms
were later found in a plastic bag during a search of
Duenas began having problems with the alarm; she could not
set it. She contacted the alarm company; the technician told
her the alarm had been tampered with and the sensors had been
On October 2, Duenas went out with Garcia to celebrate his
birthday. While she was out, the alarm was triggered and the
police responded and asked Duenas to come home. Duenas and
Garcia returned to the house and Duenas gave the police a
key. A canine unit entered the house and defendant came out
of the house and was arrested. Defendant told Garcia
“happy birthday” in Spanish.
Two searches of defendant's residence, including his
computer, revealed a wealth of evidence. Defendant had a
computer file that he had labeled “stalking.”
Inside were photographs of items in Duenas's apartment
establishing on what dates defendant had entered the
apartment. Defendant had e-mailed himself detailing
Duenas's sexual activities with Garcia and indicating
that defendant had telephoned her residence once while she
and Garcia were having sex and had (somehow) observed their
activity in response to his call. The police found jewelry
and other items taken from Duenas's apartment, as well as
a lock-picking kit. Defendant had accessed the hidden cameras
and received videos from them over the Internet more than 40
times. There were numerous intercepted e-mails and chats.
Defendant had monitored and documented Duenas's menstrual
cycle. In one document, defendant had written, “I'm
proud/pleased that she is so scared for her safety that she
avoids being home especially by herself.”
Defendant admitted he installed the spyware and cameras,
photographed Duenas, broke into her apartment on several
occasions, and took some items. His defense was that he never
wanted to scare her; he just wanted to “[k]eep her
company without her knowing it.”
People v. Moreno, 2014 WL 6809702, **1-3 (Cal.App. 3
Dec. 3, 2014), also at ECF No. 19, Ex. A. The facts as set
forth by the state court of appeal are presumed correct. 28
U.S.C. § 2254(e)(1).
was convicted of eleven counts of first degree burglary,
three counts of unauthorized computer access, three counts of
wiretapping, and two counts of stalking, for which he was
sentenced to a prison term of nineteen years and four months.
(Lod. Doc. 10 at 1.)
appealed his conviction (Lod. Docs. 3-6), and on December 3,
2014, the California Court of Appeal for the Third Appellate
District modified the crime prevention fee but otherwise
affirmed the judgment. Petitioner filed a petition for review
in the California Supreme Court, which was denied on February
25, 2015. (Lod. Doc. 8.)
filed a habeas petition in the Sacramento County Superior
Court; it was denied in a reasoned opinion on April 24, 2014.
(Lod. Docs. 9-10.) A second petition in the Santa Cruz County
Superior Court was barred as successive on August 12, 2014.
(Ptn. at 3, 15.) The state court of appeal summarily denied
his next petition on September 18, 2014 (Lod. Docs. 11-12),
and the California Supreme Court summarily denied his next
petition on February 25, 2015 (Lod. Docs. 13-14). //// On
April 17, 2015, petitioner filed a petition for writ of
habeas corpus in the California Supreme Court, No. S2258742,
concerning his prisoner classification, which is pending.
(Lod. Doc. 15.)
constructively filed the instant action on March 20, 2015.
(Ptn. at 6.)
statutory limitations of federal courts' power to issue
habeas corpus relief for persons in state custody is provided
by 28 U.S.C. § 2254, as amended by the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA). The text of
§ 2254(d) states:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the 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.
preliminary matter, the Supreme Court has recently held and
reconfirmed “that § 2254(d) does not require a
state court to give reasons before its decision can be deemed
to have been ‘adjudicated on the merits.'”
Harrington v. Richter, 131 S.Ct. 770, 785 (2011).
Rather, “when a federal claim has been presented to a
state court 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.” Id. at
784-785, citing Harris v. Reed, 489 U.S. 255, 265
(1989) (presumption of a merits determination when it is
unclear whether a decision appearing to rest on federal
grounds was decided on another basis). “The presumption
may be overcome when there is reason to think some other
explanation for the state court's decision is more
likely.” Id. at 785.
Supreme Court has set forth the operative standard for
federal habeas review of state court decisions under AEDPA as
follows: “For purposes of § 2254(d)(1), ‘an
unreasonable application of federal law is different from an
incorrect application of federal law.'”
Harrington, supra, 131 S.Ct. at 785, citing
Williams v. Taylor, 529 U.S. 362, 410 (2000).
“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.”
Id. at 786, citing Yarborough v. Alvarado,
541 U.S. 652, 664 (2004). Accordingly, “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. “Evaluating whether a rule
application was unreasonable requires considering the
rule's specificity. The more general the rule, the more
leeway courts have in reaching outcomes in case-by-case
determinations.'” Id. Emphasizing the
stringency of this standard, which “stops short of
imposing a complete bar of federal court relitigation of
claims already rejected in state court proceedings[, ]”
the Supreme Court has cautioned that “even a strong
case for relief does not mean the state court's contrary
conclusion was unreasonable.” Id., citing
Lockyer v. Andrade, 538 U.S. 63, 75 (2003).
undersigned also finds that the same deference is paid to the
factual determinations of state courts. Under §
2254(d)(2), factual findings of the state courts are presumed
to be correct subject only to a review of the record which
demonstrates that the factual finding(s) “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.” It makes no sense to interpret
“unreasonable” in § 2254(d)(2) in a manner
different from that same word as it appears in §
2254(d)(1) - i.e., the factual error must be so apparent that
“fairminded jurists” examining the same record
could not abide by the state court factual determination. A
petitioner must show clearly and convincingly that the
factual determination is unreasonable. See Rice v.
Collins, 546 U.S. 333, 338 (2006).
habeas corpus petitioner bears the burden of demonstrating
the objectively unreasonable nature of the state court
decision in light of controlling Supreme Court authority.
Woodford v. Viscotti, 537 U.S. 19 (2002).
Specifically, the 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.”
Harrington, supra, 131 S.Ct. at 786-787.
Clearly established” law is law that has been
“squarely addressed” by the United States Supreme
Court. Wright v. Van Patten, 552 U.S. 120, 125
(2008). Thus, extrapolations of settled law to unique
situations will not qualify as clearly established. See
e.g., Carey v. Musladin, 549 U.S. 70, 76 (2006)
(established law not permitting state sponsored practices to
inject bias into a criminal proceeding by compelling a
defendant to wear prison clothing or by unnecessary showing
of uniformed guards does not qualify as clearly established
law when spectators' conduct is the alleged cause of bias
injection). The established Supreme Court authority reviewed
must be a pronouncement on constitutional principles, or
other controlling federal law, as opposed to a pronouncement
of statutes or rules binding only on federal courts.
Early v. Packer, 537 U.S. 3, 9 (2002).
state courts need not have cited to federal authority, or
even have indicated awareness of federal authority in
arriving at their decision. Early, supra,
537 U.S. at 8. Where the state courts have not addressed the
constitutional issue in dispute in any reasoned opinion, the
federal court will independently review the record in
adjudication of that issue. “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).
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 (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.
Judicial Errors Violated Due Process
asserts four claims that he was denied his due process right
to a fair trial as a ...