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Moreno v. Valenzuela

United States District Court, E.D. California

April 27, 2017

JOSE MORENO, Petitioner,
v.
ELVIN VALENZUELA, Respondent.

          FINDINGS AND RECOMMENDATIONS

          CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE

         Petitioner, 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.

         BACKGROUND

         In its 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 relationship.
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 missing.
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 defendant's residence.
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 removed.
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).

         Petitioner 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.)

         Petitioner 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.)

         Petitioner 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.)

         Petitioner constructively filed the instant action on March 20, 2015. (Ptn. at 6.)

         ANALYSIS

         I. AEDPA

         The 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; 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.

         As a 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.

         The 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).

         The 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).

         The 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).

         The 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).

         “When 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.

         II. Petitioner's Claims

         A. Judicial Errors Violated Due Process

         Petitioner asserts four claims that he was denied his due process right to a fair trial as a ...


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