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Terhune v. Lizarraga

United States District Court, E.D. California

May 26, 2017

JOE LIZARRAGA, Respondent.



         Petitioner is currently serving an indeterminate sentence of 100 years-to-life for the premeditated, first degree murders of his father and mother. He has filed the instant habeas action challenging his guilty plea and sentence. As discussed below, the Court finds that the state court rejections of his claims were not contrary to or an unreasonable application of clearly established Supreme Court precedent and recommends the petition be DENIED.


         On March 9, 2010, in the Stanislaus County Superior Court, Petitioner entered into a plea agreement wherein he pled guilty to two counts of first degree, premeditated murder (Cal. Penal Code § 187(a)), with enhancements for personally using a firearm causing death or great bodily injury (Cal. Penal Code § 12022.53(d)). (Doc. No. 1 at 2, 66.) For its part, the prosecution moved to strike the special allegation under Cal. Penal Code § 190.2(a)(3), precluding a sentence of life without parole. (Doc. No. 1 at 66.) Petitioner was sentenced to an aggregate, indeterminate term of 100 years to life. (Doc. No. 1 at 2, 66.) He also waived his right to appeal. (Doc. No. 1 at 66.) Petitioner then filed multiple habeas petitions at all three levels of the state courts. (LD[1] 2-11.)


         The parties stipulated to the following factual basis at the change of plea hearing:

[O]n or about January 13, 2009, in the early afternoon, the defendant entered the residence of his parents, Ken and Diane Terhune. At the time the defendant lived in another building, a guest house, on the same property. He entered that property, went to his parents' bedroom, armed himself with several guns, and then left the house back to his bedroom.
After test firing one of the guns and waiting for his parents to arrive home, the defendant again entered the house, approached his brother, Elliott Terhune, and contacted him. He demanded that Elliott Terhune leave the house. There was an argument that arose when that happened. Mr. Elliott Terhune saw the gun that his brother was holding. At that time an argument ensued with Mr. Elliott Terhune attempting to convince Mr. Cameron Terhune not - - the defendant not to do anything to his parents. Mr. Elliott Terhune was told by defendant that it was either the parents or all of them and told Mr. Elliott Terhune again to leave the house, which Mr. Elliott Terhune did at that time.
After Mr. Elliott Terhune left the house, the defendant approached the kitchen through a doorway between the kitchen and dining room area of the house. He leaned into the kitchen area and shot, using one of the guns that he had with him, personally shot and intentionally discharged a firearm at his father hitting him in the back of the head. The shot went through Mr. Kenneth Terhune's head and into the cabinets behind him killing Mr. Terhune instantly.
At that time Mrs. Diane Terhune was coming through an entryway, a mud room in the house. The defendant saw her, and she saw the defendant, she screamed and started to back away, tripped in the mud room and fell to the ground. At that time defendant began to shoot her with the same gun that he had used to kill Mr. Terhune. He personally used that gun, personally discharged that gun at Diane Terhune. He shot her multiple times emptying that gun. He attempted to shoot her with another gun. When that gun misfired, he returned to Ken and Diane Terhune's bedroom, took another gun, and returned to the mud room and shot Diane Terhune at least two more times until that gun jammed. He then returned to the bedroom, obtained a flashlight, and returned to the scene where Ms. Terhune lay dying and hit her over the head multiple times with the flashlight until she became quiet.
He did all these items with premeditation, deliberation as shown by the fact that he obtained the guns earlier in the afternoon, tested the guns, told his brother to leave. He's the only individual who fired a gun, he did that personally and intentionally discharging those firearms causing the death of Diane Terhune at the time he was committing murder - - I'm sorry, Diane and Ken Terhune at the time he was committing murder.

(Doc. No. 1 at 70-72.)


         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 Stanislaus County Superior Court, which is located within the jurisdiction of this court. 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) (holding the AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.

         B. Legal Standard of Review

         A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless the 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); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 U.S. at 412-413.

         A state court decision is “contrary to” clearly established federal law “if it applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases, or “if it confronts a set of facts that is materially indistinguishable from a [Supreme Court] decision but reaches a different result.” Brown v. Payton, 544 U.S. 133, 141 (2005) (citing Williams, 529 U.S. at 405-406).

         In Harrington v. Richter, 562 U.S. 86, 101 (2011), the U.S. Supreme Court explained that an “unreasonable application” of federal law is an objective test that turns on “whether it is possible that fairminded jurists could disagree” that the state court decision meets the standards set forth in the AEDPA. The Supreme Court has “said time and again that ‘an unreasonable application of federal law is different from an incorrect application of federal law.'” Cullen v. Pinholster, 563 U.S. 170, 203 (2011). Thus, a state prisoner seeking a writ of habeas corpus from a federal court “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 of fairminded disagreement.” Harrington, 562 U.S. at 103.

         The second prong pertains to state court decisions based on factual findings. Davis v. Woodford, 384 F.3d 628, 637 (9th Cir. 2003) (citing Miller-El v. Cockrell, 537 U.S. 322 (2003)). Under § 2254(d)(2), a federal court may grant habeas relief if a state court's adjudication of the petitioner's claims “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.” Wiggins v. Smith, 539 U.S. 510, 520 (2003); Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997). A state court's factual finding is unreasonable when it is “so clearly incorrect that it would not be debatable among reasonable jurists.” Jeffries, 114 F.3d at 1500; see Taylor v. Maddox, 366 F.3d 992, 999-1001 (9th Cir. 2004), cert.denied, Maddox v. Taylor, 543 U.S. 1038 (2004).

         To determine whether habeas relief is available under § 2254(d), the federal court looks to the last reasoned state court decision as the basis of the state court's decision. See Ylst v. Nunnemaker, 501 U.S. 979, 803 (1991); Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). “[A]lthough we independently review the record, we still defer to the state court's ultimate decisions.” Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

         The prejudicial impact of any constitutional error is assessed by asking whether the error had “a substantial and injurious effect or influence in determining the jury's verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551 U.S. 112, 119-120 (2007) (holding that the Brecht standard applies whether or not the state court recognized the error and reviewed it for harmlessness).

         C. Review of Claims

         Petitioner raises the following claims challenging his conviction and sentence: 1) Petitioner was denied the effective assistance of counsel in several respects; 2) The plea was not made voluntarily and intelligently; and 3) The sentence was illegal and in violation of double jeopardy principles.

         1. Ineffective Assistance of Counsel

         Petitioner first alleges his defense counsel was ineffective in failing to investigate, failing to obtain vital psychiatric records, refusing to request appointment of co-counsel, allowing the preliminary hearing to be conducted outside of his presence, relying on the prosecution's expert witness's report, failing to challenge Petitioner's competency, advising Petitioner to plead guilty, tricking Petitioner into waiving his appellate rights, and failing to present mitigating circumstances at the sentencing hearing.

         a. State Court Decision

         Petitioner first presented this claim to the Stanislaus County Superior Court on January 2, 2016, in a habeas petition. The court denied the claim as follows:

Petitioner alleges IAC based on defense counsel's failure [to] investigate psychiatric records and investigate a not guilty plea by reason of insanity (NGI) defense. The entry of plea transcript indicates that defense counsel had consulted with a mental health expert whose opinion did not support the entry of an NGI plea. Further, counsel stipulated that the Court could review a report of a forensic interview conducted by Dr. Phillip Trompetter soon after the offense. It was the opinion of Dr. Trompetter, that Petitioner was sane at the time of the commission of the offense.
Petitioner also alleges defense counsel was ineffective for not requesting Keenan counsel. The file indicated that the People indicated that the death penalty would not be sought in this matter on March 30, 2009, approximately two months after the initial arraignment in this matter. Petitioner would not have been eligible for second counsel after said date.
Petitioner also alleges IAC because his attorney did not file a Notice of Appeal. Petitioner specifically waived appellate rights.
Petitioner alleges that there was some legal error by his entry of a “spontaneous plea”. The record shows that proceedings in this matter were recessed for approximately one hour for defense counsel to confer with Petitioner. The guilty plea in this matter was taken after ...

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