United States District Court, N.D. California
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS;
DENYING CERTIFICATE OF APPEALABILITY Re: ECF No. 11
TIGAR, UNITED STATES DISTRICT JUDGE
the Court is Jose Enrique Hernandez's
("Petitioner") Petition for Writ of Habeas Corpus.
ECF No. 11. The Court will deny the Petition.
was convicted on September 10, 2012 of attempting to commit
sexual acts with a child 10 years or younger in violation of
California Penal Code §§ 288.7 and 664, and 10
counts of lewd and lascivious acts upon a child under 14 in
violation of California Penal Code § 288(a). The
evidence admitted at trial included statements from four
interviews conducted by Detective Xavier Shabazz, an
investigator with the Contra Costa County Sheriffs
Department. ECF No. 11 at 13, 22. Over the course of these
interviews, Petitioner confessed to a substantial number of
the illegal acts charged against him. Following
Petitioner's conviction, the trial court sentenced him to
a prison term of 84 years to life. ECF No. 1 at 6-7. The
trial court also ordered petitioner to pay the two victims a
total of $1, 000, 000 - $900, 000 to one victim, and $100,
000 to the other. Exh. A at 873, 880; Exh. B at 2419-20,
filed this petition on February 10, 2016.ECF No. 1. On
April 11, 2016 Magistrate Judge Donna Ryu issued an order to
show cause as to why the petition should not be
granted. ECF No. 7. Respondent filed an
answer to the order on June 10, 2016, ECF No. 11, and
Petitioner filed a traverse on October 7, 2016, ECF No. 18.
now seeks habeas relief from this Court on three grounds.
First, Petitioner argues his confessions were obtained
through improper coercion and admitted into evidence in
violation of his Fifth Amendment right against
self-incrimination and Fourteenth Amendment right to due
process. Petitioner advances four reasons why the Court
should conclude his confessions were involuntary and
unconstitutional: (1) Detective Shabazz wrongfully appealed
to Petitioner's religious beliefs; (2) the detective made
improper threats or promises of leniency; (3) the detective
wrongfully appealed to Petitioner's fear of losing his
daughter; and (4) the totality of the circumstances shows
that the confessions were involuntary. ECF No. 3 at 30-35.
Second, Petitioner contends the trial court's jury
instructions were constitutionally deficient because they
allowed the jury to make irrational permissive inferences in
violation of due process and lessened the prosecution's
burden of proof. ECF No. 3 at 38. Third, Petitioner argues
the $1, 000, 000 victim restitution award was not found by a
jury beyond a reasonable doubt and therefore violates the
Sixth Amendment. ECF No. 3 at 41.
argues that Petitioner is not entitled to habeas relief
because he has not established that the state court's
rejection was contrary to or an unreasonable application of
established U.S. Supreme Court precedent. Furthermore,
Petitioner's claim regarding victim restitution is not a
cognizable theory for habeas relief. ECF No. 11 at 22, 41,
STANDARD OF REVIEW
may grant habeas relief only if a state court's ruling on
federal constitution claims resulted in a decision that was
contrary to or involved an unreasonable application of
clearly established federal law or was based on an
unreasonable determination of facts. 28 U.S.C. §
2254(d)(1); Williams v. Taylor, 529 U.S. 362, 407-09
(2000). "Contrary to" means that the state
court's ruling is "substantially different from the
relevant" Supreme Court precedent, or "confronts a
set of facts that are materially indistinguishable" from
a Supreme Court decision and "nevertheless arrives at a
result different from [Supreme Court] precedent."
Williams, 529 U.S. at 405-06. An "unreasonable
application" is one where the state court "1)
correctly identifies the governing rule but then applies it
to a new set of facts in a way that is objectively
unreasonable, or 2) extends or fails to extend a clearly
established legal principle to a new context in a way that is
objectively unreasonable." DeWeaver v. Runnels,
556 F.3d 995, 997 (9th Cir. 2009) (quoting Hernandez v.
Small, 282 F.3d 1132, 1142 (9th Cir. 2002)).
federal court "must defer to the state court's
factual findings unless a defect in the process is so
apparent that 'any appellate court. . . would be
unreasonable in holding that the state court's
factfinding process was adequate.'" Id.
(quoting Taylor v. Maddox, 366 F.3d 992, 1000 (9th
Cir. 2004)). A state court decision is not unreasonable
merely because the federal habeas court would have reached a
different conclusion. State court decisions are presumed
correct unless rebutted by clear and convincing evidence.
Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The
standard for evaluating a state court's ruling is
"highly deferential" and the state court must be
given the benefit of the doubt, and the Petitioner has the
burden of showing that the state court decision is
objectively unreasonable. Cullen v. Pinholster, 131
S.Ct. 1388, 1398(2011) (quoting Woodford v.
Visciotti, 537 U.S. 19, 24 (2002)). A prisoner can
obtain habeas relief only if he can show the error had a
"substantial and injurious effect" on the verdict.
Inthavong v. Lamarque, 420 F.3d 1055, 1059 (9th Cir.
Court addresses Petitioner's three arguments in turn and
concludes Petitioner is not entitled to habeas relief.
argues that his statements to Detective Shabazz were
involuntary because the detective's investigative tactics
were coercive. ECF No. 3 at 29. "A finding of coercive
police activity is a prerequisite to a finding that a
confession was involuntary under the federal and state
Constitutions." People v. McWhorter, 47 Cal.4th
318, 347 (2009) (quoting People v. Benson, 52 Cal.3d
754, 778 (1990)). A confession is involuntary if obtained by
threats or violence, by any direct or implied promises of
leniency, or by exertion of improper influence. Id.
The Court of Appeal rejected Petitioner's position that
his statements were involuntary. See ECF No. ...