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Herrera v. Sullivan

United States District Court, E.D. California

May 30, 2017

MARCELO HERRERA, Petitioner,
v.
WILLIAM SULLIVAN, Warden Respondent.

          FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT OF HABEAS CORPUS

          MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE.

         Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus under 28 U.S.C. § 2254. William Sullivan, Warden of Corcoran State Prison, is hereby substituted as the proper named respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. Respondent is represented by Justain P. Riley of the Office of the California Attorney General.

         I. Procedural History

         Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation pursuant to a judgment of the Superior Court of California, County of Tulare for attempted murder, aggravated mayhem, first degree robbery, first degree burglary, assault with a deadly weapon, and active participation in a street gang. (Lodged Doc. 1 at 2.) He is serving an aggregate sentence of 120 years to life. (Id.)

         Petitioner appealed his conviction and sentence (Lodged Doc. 2) and, on June 13, 2014, the California Court of Appeal for the Fifth Appellate District affirmed the conviction and ordered additional enhancements (Lodged Doc. 5). The California Supreme Court granted a petition for review, and ordered reconsideration of the Court of Appeal‘s imposition of additional enhancements. (Lodged Doc. 7.)

         On November 10, 2014, the Fifth District Court of Appeal issued a reasoned decision in which it reversed its imposition of enhancements and affirmed the judgement in all other respects. (Lodged Doc. 1.)

         On September 21, 2015, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (Lodged Doc. 9.) It was summarily denied on December 16, 2015. (Lodged Doc. 0.)

         Petitioner filed the instant federal habeas petition on January 29, 2016. (ECF No. 1.) Respondent filed an answer to the petition on May 31, 2016. (ECD No. 17.) Petitioner filed no traverse and the time for doing so has passed. The matter stands ready for adjudication.

         II. Factual Background[1]

Around 3:00 a.m. on July 11, 2010, Agustin Maldonado responded to a knock at the door and two men-later identified as defendant and Jario Aguiniga-pushed their way into Maldonado's house. They knocked Maldonado to the floor and ''knifed'' him in the face, arms, and stomach. When Maldonado tried to get up, he was knifed in the neck. Maldonado saw a single blade during the attack, but he could not tell which one of the men held the knife. They were both on top of him at first. They also struck Maldonado with their hands and feet.
After attacking Maldonado, the two men pursued Juan Carlos Bernal, one of Maldonado's houseguests, to a bedroom where they demanded money. Bernal identified defendant and testified that defendant shoved him and showed him a knife, while saying they were going to kill him. Defendant then knocked Bernal onto the bed and took his wallet and cell phone. Meanwhile, defendant's companion went through the room, pulling out drawers and looking for money.[fn3] After finding ammunition in one of the drawers, they became angry and started asking Bernal the location of the gun, which Bernal did not know. When they were unable to find a gun, they said ''Let's go.''
FN3: After the incident, Maldonado discovered a watch and a few items of jewelry were missing from his bedroom.
Defendant was tied to the July 11, 2010, incident by fingerprint evidence found at Maldonado's residence and another residence located on the same property. Defendant was subsequently arrested and made incriminating statements during an interview with Porterville Police Detective Richard Carrillo, implicating himself in the robbery but denying he stabbed Maldonado.
Porterville Police Officer Christopher McGuire testified as an expert regarding criminal street gangs. In McGuire's opinion, defendant was an active member of the Varrio Central Poros (VCP) gang, a local Norteño gang in Porterville, and Aguiniga was an active member of the Eastside Varrio Poros (ESVP) gang, another local Norteño gang. Presented with a hypothetical based on the circumstances of the July 11, 2010, incident, McGuire opined the crimes were committed in association with a criminal street gang ''because you have two active documented gang members associating with one another'' and ''assisting one another'' in committing the crimes. There was also ''a benefit in getting a firearm potentially'' as ''a firearm is the most sought-after weapon for a gang.''

People v. Herrera, No. F064425, 2014 WL 5804540, at *2 (Cal.Ct.App. Nov. 10, 2014). (ECF No. 17-1.)

         III. Discussion

         A. Jurisdiction

         Relief by way of a writ of habeas corpus extends to a prisoner under a judgment of a state court if the custody violates 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 a violation of his right to due process as guaranteed by the U.S. Constitution. Petitioner was convicted and sentenced in this district and remains incarcerated here. 28 U.S.C. § 2241(d); 2254(a). The Court concludes that it has jurisdiction over the action.

         B. Legal Standard of Review

         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, 326 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997). The instant petition was filed after the enactment of AEDPA; thus, it is governed by its provisions.

         Under AEDPA, a petition for a writ of habeas corpus by a prisoner in custody under a judgment of a state court may be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. at 375 n.7 (2000). Federal habeas corpus relief is available for any claim decided on the merits in state court proceedings if the state court's 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.

28 U.S.C. § 2254(d).

         1. Contrary to or an Unreasonable Application of Federal Law

         A state court decision is ''contrary to'' federal law if it ''applies a rule that contradicts governing law set forth in [Supreme Court] cases'' or ''confronts a set of facts that are materially indistinguishable from'' a Supreme Court case, yet reaches a different result.'' Brown v. Payton, 544 U.S. 133, 141 (2005) (citing Williams, 529 U.S. at 405-06). ''AEDPA does not require state and federal courts to wait for some nearly identical factual pattern before a legal rule must be applied. . . . The statue recognizes . . . that even a general standard may be applied in an unreasonable manner'' Panetti v. Quarterman, 551 U.S. 930, 953 (2007) (citations and quotation marks omitted). The ''clearly established Federal law'' requirement ''does not demand more than a ‗principle‘ or ‗general standard.‘'' Musladin v. Lamarque, 555 F.3d 830, 839 (2009). For a state decision to be an unreasonable application of clearly established federal law under § 2254(d)(1), the Supreme Court's prior decisions must provide a governing legal principle (or principles) to the issue before the state court. Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003).

         A state court decision will involve an ''unreasonable application of'' federal law only if it is ''objectively unreasonable.'' Id. at 75-76 (quoting Williams, 529 U.S. at 409-10); Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002). In Harrington v. Richter, the Court further stressed that ''an unreasonable application of federal law is different from an incorrect application of federal law.'' 131 S.Ct. 770, 785 (2011) (citing Williams, 529 U.S. at 410) (emphasis in original). ''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. 653, 664 (2004)). Further, ''[t]he more general the rule, the more leeway courts have in reading outcomes in case-by-case determinations.'' Id.; Renico v. Lett, 130 S.Ct. 1855, 1864 (2010). ''It is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by this Court.'' Knowles v. Mirzayance, 556 U.S. 111, 122, 129 S.Ct. 1411, 1419 (2009) (quoting Richter, 131 S.Ct. at 786).

         2. Review of State Decisions

         ''Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the claim rest on the same grounds.'' See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). This is referred to as the ''look through'' presumption. Id. at 804; Plascencia v. Alameida, 467 F.3d 1190, 1198 (9th Cir. 2006). Determining whether a state court's decision resulted from an unreasonable legal or factual conclusion, ''does not require that there be an opinion from the state court explaining the state court's reasoning.'' Richter, 131 S.Ct. at 784-85. ''Where a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief.'' Id. (''This Court now holds and reconfirms 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.‘'').

         Richter instructs that whether the state court decision is reasoned and explained, or merely a summary denial, the approach to evaluating unreasonableness under § 2254(d) is the same: ''Under § 2254(d), a habeas court must determine what arguments or theories supported or, as here, could have supported, the state court's decision; 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. at 786. Thus, ''even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.'' Id. (citing Lockyer, 538 U.S. at 75). AEDPA ''preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents.'' Id. To put it yet another way:

As a condition for obtaining habeas corpus relief from a federal court, a state prisoner 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.

Id. at 786-87. This is because ''state courts are the principal forum for asserting constitutional challenges to state convictions.'' Id. at 787. It follows from this consideration that § 2254(d) ''complements the exhaustion requirement and the doctrine of procedural bar to ensure that state proceedings are the central process, not just a preliminary step for later federal habeas proceedings.'' Id. (citing Wainwright v. Sykes, 433 U.S. 72, 90 (1977)).

         3. Prejudicial Impact of Constitutional Error

         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, 121-22 (2007) (holding that the Brecht standard applies whether or not the state court recognized the error and reviewed it for harmlessness). Some constitutional errors, however, do not require that the petitioner demonstrate prejudice. See Arizona v. Fulminante, 499 U.S. 279, 310 (1991); United States v. Cronic, 466 U.S. 648, 659 (1984). Furthermore, where a habeas petition governed by AEDPA alleges ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), the Strickland prejudice standard is applied and courts do not engage in a separate analysis applying the Brecht standard. Avila v. Galaza, 297 F.3d 911, 918, n.7 (2002); Musalin v. Lamarque, 555 F.3d 830, 834 (9th Cir. 2009).

         IV. Review of Petition

         A. Claim One: Ineffective Assistance of Trial Counsel

         Petitioner claims that his trial counsel was ineffective in allowing the prosecutor to admit evidence of Petitioner‘s prior crimes as improper evidence of Petitioner‘s disposition or propensity to commit the crimes charged.

         1. State Court Decision

         The last reasoned decision of the state court summarily denied Petitioner‘s ineffective assistance of counsel claim.[2] Determining whether a state court's decision resulted from an unreasonable legal or factual conclusion "does not require that there be an opinion from the state court explaining the state court's reasoning." Harrington, 131 S.Ct. at 784-85. "Where a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief." Id. ("This Court now holds and reconfirms 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 instructs that whether the state court decision is reasoned and explained, or merely a summary denial, the approach to evaluating unreasonableness under § 2254(d) is the same: "Under § 2254(d), a habeas court must determine what arguments or theories supported or, as here, could have supported, the state court's decision; 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. at 786.

         2. Legal Standard

         The law governing ineffective assistance of counsel claims is clearly established for the purposes of the AEDPA deference standard set forth in 28 U.S.C. § 2254(d). Canales v. Roe, 151 F.3d 1226, 1229 (9th Cir. 1998). In a petition for writ of habeas corpus alleging ineffective assistance of counsel, the Court must consider two factors. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994). First, the petitioner must show that counsel's performance was deficient, requiring a showing that counsel made errors so serious that he or she was not functioning as the "counsel" guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. The petitioner must show that counsel's representation fell below an objective standard of reasonableness, and must identify counsel's alleged acts or omissions that were not the result of reasonable professional judgment considering the circumstances. Id. at 688; United States v. Quintero-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995). Judicial scrutiny of counsel's performance is highly deferential. A court indulges a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 687; see also, Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).

         Second, the petitioner must demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result ... would have been different." Strickland, 466 U.S. at 694. Petitioner must show that counsel's errors were "so serious as to deprive defendant of a fair trial, a trial whose result is reliable." Id. at 687. The Court must evaluate whether the entire trial was fundamentally unfair or unreliable because of counsel's ineffectiveness. Id.; Quintero-Barraza, 78 F.3d at 1348; United States v. Palomba, 31 F.3d 1456, 1461 (9th Cir. 1994).

         A court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the petitioner as a result of the alleged deficiencies. Strickland, 466 U.S. at 697. Since the defendant must affirmatively prove prejudice, any deficiency that does not result in prejudice must necessarily fail. However, there are certain instances which are legally presumed to result in prejudice, e.g., where there has been an actual or constructive denial of the assistance of counsel or where the State has interfered with counsel's assistance. Id. at 692; United States v. Cronic, 466 U.S., at 659, and n. 25 (1984).

         As the Supreme Court reaffirmed in Harrington v. Richter, meeting the standard for ineffective assistance of counsel in federal habeas is extremely difficult:

The pivotal question is whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland's standard. Were that the inquiry, the analysis would be no different than if, for example, this Court were adjudicating a Strickland claim on direct review of a criminal conviction in a United States district court. Under AEDPA, though, it is a necessary premise that the two questions are different. For purposes of § 2254(d)(1), "an unreasonable application of federal law is different from an incorrect application of federal law." Williams, supra, at 410, 120 S.Ct. 1495, 146 L.Ed.2d 389. A state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.
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. Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004). And as this Court has explained, "[E]valuating 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." Ibid. "[I]t is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by this Court." Knowles v. Mirzayance, 556 U.S. 111, 129 S.Ct. 1411, 1419, 173 L.Ed.2d 251, 261 (2009) (internal quotation marks omitted).

Harrington v. Richter, 131 S.Ct. at 785-86.

         "It bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. at 786. "As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings." Id. "As a condition for obtaining habeas corpus from a federal court, a state prisoner 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." Id. at 786-87.

         Accordingly, even if Petitioner presents a strong case of ineffective assistance of counsel, this Court may only grant relief if no fairminded jurist could agree on the correctness of the state court decision.

         3. Background

         Petitioner‘s claim concerns the admission of evidence and testimony regarding his prior criminal history and gang activity.

         On August 6, 2010, Petitioner was charged with participation in a criminal street gang, both as a stand-alone offense and as an enhancement. (1CT at 1-14.)

         On May 19, 2011, trial counsel Garcia substituted in as attorney of record. (1CT at 214.)

         On September 29, 2011, Garcia filed a motion to set aside the information on the ground that there was insufficient information to support presenting a jury with charges and allegations regarding Petitioner‘s gang participation and enhancements. (1CT at 223; see also 5RT at 29-30; 6RT at 43.) The motion was denied. (5RT at 30.)

         Trial commenced on October 11, 2011. (6RT.) During pretrial proceedings, the parties addressed the State‘s motion in limine to admit evidence of Petitioner‘s prior convictions. (6RT at 40.) Garcia argued that the prior convictions should not be admitted because there was no evidence to indicate that offenses to be tried were gang-related and the prior conviction evidence was more prejudicial than probative. (6RT at 43-44.) The trial court concluded that the evidence was more probative than prejudicial and that the proffered testimony regarding Petitioner‘s criminal history would be relevant. (6RT at 47.) Accordingly, the trial court concluded that the evidence was admissible. (Id.)

         During trial, the prosecutor elicited opinion testimony from a gang expert, Christopher McGuire, regarding whether Petitioner was an active gang member. (10RT at 697.) This testimony and the related exchange between counsel and the court forms the basis for Petitioner‘s claim in the instant action, and accordingly it is reproduced verbatim:

Q. Yesterday we left off with 05-1542. I'd like to turn your attention to PPD Case Number 15 06-0057, contact date of January 3rd, 2006. Have you had an opportunity to review the report generated in that Porterville Police Department case?
A. Yes, I have.
Q. Was there anything significant contained in those reports that helped you form an opinion as to whether or not the defendant, Marcelo Herrera is an active Norteno gang member?
A. Yes, I was.
Q. And what in that report helped you form an opinion or what was relevant ...

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