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Ramirez v. Davey

United States District Court, E.D. California

May 31, 2017

ELEAZAR RAMIREZ, Petitioner,
v.
DAVE DAVEY, Respondent.

          FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT OF HABEAS CORPUS [TWENTY-ONE DAY OBJECTION DEADLINE]

          JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE.

         Petitioner is currently serving an indeterminate sentence of 96 years-to-life for convictions of carjacking, assault with a firearm, possession of a firearm and ammunition by a convicted felon, and evading a police officer. He has filed the instant habeas action claiming juror misconduct and bias. As discussed below, the Court finds that the state court rejection of his claim was not contrary to or an unreasonable application of clearly established Supreme Court precedent and recommends the petition be DENIED.

         I. PROCEDURAL HISTORY

         On July 8, 2013, in the Fresno County Superior Court, Petitioner was found guilty of: two counts of carjacking (Cal. Penal Code § 215(a)); assault with a firearm (Cal. Penal Code § 245(a)(2)); possession of a firearm by a felon (Cal. Penal Code § 12021(a)(1)); possession of ammunition by a felon (Cal. Penal Code § 12316(b)(1)); and felony evasion of a peace officer (Cal. Vehicle Code § 2800.2(a)). People v. Ramirez, No. F067605, 2015 WL 970198, at *1 (Cal.Ct.App. Mar. 3, 2015). Special allegations that Petitioner used a gun in the commission of both carjackings and the assault (Cal. Penal Code §§ 12022.53(b), 12022.5(a)) and that Petitioner discharged a firearm during the commission of the offense (Cal. Penal Code § 12022.53(c)) were found true. Id. Special allegations that Petitioner had two prior serious felony convictions pursuant to the California's three strikes law (Cal. Penal Code §§ 667(b)-(i), 1170.12(a)-(d)), qualified for a prior serious felony enhancement (Cal. Penal Code § 667(a)), and qualified for a prior prison term enhancement (Cal. Penal Code § 667.5(b)) were found true. Id.

         Petitioner appealed to the California Court of Appeal, Fifth Appellate District (“Fifth DCA”). Id. The appeal was denied in a reasoned opinion on March 3, 2015. Id. He then filed a petition for review in the California Supreme Court, and the petition was denied on June 10, 2015. (LD[1] 4, 5.) Petitioner also filed a habeas petition in the California Supreme Court. (LD 6.)

         On July 13, 2015, Petitioner filed a federal petition for writ of habeas corpus in this Court. (Doc. No. 1.) On September 16, 2016, the Court dismissed all but the sixth claim as unexhausted. (Doc. No. 21.) Respondent filed an answer on November 14, 2016. (Doc. No. 23.) Petitioner did not file a traverse.

         II. FACTUAL BACKGROUND

         The Court adopts the Statement of Facts in the Fifth DCA's unpublished decision[2]:

         First Carjacking

On March 3, 2011, [FN2] Lazaro Cantu met Christine Northrup, a friend and coworker, in Fresno's Tower District for an Art Hop event. They then went to a Thai restaurant on Olive Avenue for dinner about 10:00 p.m. The two arrived in separate cars. Cantu drove his mother's car, a 2005 gray Toyota Camry, which was parked in a different location than Northrup's car.
[FN2] Unless otherwise noted, all date references are to the year 2011.
Cantu walked with Northrup back to his car and was placing leftover food in the backseat when Northrup motioned to him that someone was coming toward them. When Cantu looked up, appellant approached him, pointed a gun at Cantu's abdomen, and said he was taking the car. Cantu got scared and reacted by trying to push the gun down and away from his body. Appellant pulled back and struggled with Cantu over control of the gun. The two men went up against a fence. Appellant bit Cantu's arm until Cantu let go of the gun. Appellant threw Cantu to the ground, fell to the ground himself, and the two men struggled. Both men had hold of the gun, but Cantu held only the barrel, not the trigger.
Cantu was pushing or holding the gun above his head when he heard it fire a round. With the gun directly in his face, Cantu heard a “snap” sound. Northrup heard a round go off and also heard a bullet spark, or ricochet, off the street. Northrup heard a second “click” noise, but no bullet was fired from the gun. After the misfire, appellant told Cantu something to the effect that it should have been Cantu's head. With the gun pointed at his face, Cantu held up his hands and asked appellant to calm down. Appellant demanded the car keys and told Cantu to toss them over to him. Cantu tossed the keys to appellant, Cantu and Northrup ran away, and appellant drove away in the Camry.
Cantu clearly saw appellant's face because there was a streetlight where he was assaulted. Cantu saw tattoos on appellant, especially one on the left side of appellant's neck.
After looking at a first photo lineup, Cantu did not see appellant in any of the photographs. In a second photo lineup, Cantu was able to identify appellant.

         Second Carjacking

Jesus Guerrero was at a coin-operated car wash cleaning his 1993 blue/green Honda Civic on March 12. As Guerrero was about to finish, appellant walked up and pointed a gun at Guerrero. Appellant demanded the keys to the Honda. Guerrero told him the keys were in the car. Appellant motioned for Guerrero to leave and then drove away in the Honda. Guerrero was able to identify appellant in a photo lineup because he recognized appellant's eyes.
Guerrero ran to a nearby Carl's Jr. restaurant and had someone call 911. Police Officer Ryan Stockdale responded to the car wash and found a light-colored Toyota Camry that appellant reportedly left at the scene. When Stockdale ran the license plate number of the Camry, he learned it had been stolen in the Cantu carjacking.
Police tracked appellant using Guerrero's cell phone, which was still in the Honda. Officers found the Honda parked, set up a loose surveillance, and waited until appellant got back into the vehicle and started driving it. Officers began to move in on the Honda. When an officer activated his forward solid red light, flashing front lights, and siren, appellant accelerated away rather than pulling over.
Appellant was driving fast and recklessly through town with patrol units in hot pursuit until officers attempted to immobilize the Honda by ramming into it. Although the impact caused the Honda to spin out, appellant again accelerated the car and continued to flee. Appellant eventually drove the Honda into a cul-de-sac and crashed it into a fence. Two officers pursued appellant on foot. Appellant disposed of his gun during the chase but it was later recovered.
Appellant was eventually apprehended. Officers found a gray cloth bag containing seven live rounds of .22-caliber ammunition, a Toyota key and key fob, paperwork from a car dealership with Cantu's name and address on it, and a piece of paper with Cantu's name on it that also had appellant's fingerprint.

         Defense

Officer Lisa Maldonado testified that she assisted in the investigation of the March 3 carjacking. Northrup gave a general account of appellant approaching them, demanding the keys to Cantu's car, and then pulling out a gun and pointing it at Cantu. Northrup told Maldonado that the assailant fired the gun twice and she believed the assailant was trying to scare Cantu into giving up his car keys. Maldonado canvassed the area for shell casings and looked for strike marks on the street where the bullet may have hit, but found nothing.

         Elevator ...


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