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Ortega v. Spearman

United States District Court, E.D. California

June 15, 2017

M. ELIOT SPEARMAN, Warden, High Desert State Prison, [1] Respondent.


          JAMES K. SINGLETON, JR. Senior United States District Judge

         Victor Anthony Ortega, a state prisoner represented by counsel during briefing but now proceeding pro se, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Ortega is in the custody of the California Department of Corrections and Rehabilitation and incarcerated at High Desert State Prison. Respondent has answered, and Ortega has replied.


         On April 1, 2010, Ortega was charged with the malice aforethought murder of Marcus Mayes (Count 1) and the malice aforethought attempted murder of Dariece Sims (Count 2), both of which were serious and violent felonies. The information further alleged as to Count 1 that Ortega used and intentionally and personally discharged a firearm thereby causing great bodily injury or death to Mayes, and that he used and intentionally discharged a firearm with respect to Count 2. Both counts also alleged that he personally used a firearm, which also caused them to be serious and violent felonies. On March 25, 2010, Ortega proceeded to a jury trial. On direct appeal of his conviction, the California Court of Appeal laid out the following facts underlying this case and the evidence presented at trial:

On May 28, 2008, around dusk, the victim, Marcus Mayes, and his friend Dariece Sims walked down a street. [Ortega] drove past them, going in the opposite direction. As the car passed, the passenger, who was reclined in his seat, leaned up and quickly glanced at Mayes and Sims while trying to hide his face. This piqued Sims's curiosity and spooked him. Sims asked Mayes if he had seen the car. Mayes looked back at Sims but did not otherwise respond as they continued walking.
After the car went down the street, it evidently made a U-turn and headed back in the direction in which Mayes and Sims were walking. The car slowly passed them and drove out of sight behind a fence and a bend in the road. As the car passed, [Ortega] and the passenger were “mad-dogging” Mayes and Sims. Sims described the term “mad-dogging” as “[l]ooking hard, like staring at somebody for a long time.” Sims got suspicious and asked Mayes, “Did you see them?” Mayes replied, “Yeah, I saw them. Just keep walking.” Sims did not recognize [Ortega] or the passenger.
Mayes and Sims kept walking. When they rounded the bend in the road, they saw that the car had parked facing toward them, as if it had made another U-turn in the interim.
[Ortega] and the passenger left the car and walked toward Mayes and Sims, who continued walking toward them as the distance quickly closed. When [Ortega] and the passenger were about six feet from Mayes and Sims, everyone stopped walking. The passenger asked [Ortega], “[d]on't you know him?” and [Ortega] replied, “ [y]eah, that's the bitch-ass nigger from the Light Rail.”FN2 Sims believed there was going to be a fight.
FN2. Sims told a detective that they had not gone to the light rail station and had remained in the neighborhood all day.
[Ortega] drew a revolver from his jacket pocket as he finished his remark. Mayes, who was two or three steps in front of Sims, swung at [Ortega] but missed, which threw him off balance. Mayes grabbed the front of [Ortega's] jacket with both hands and pushed him into a gate and fence. [Ortega] and Mayes were upright at that point. [Ortega] had both hands up by his head with the gun in his left hand “pointing up in the air.”
Sims rushed at [Ortega] and tried to grab the gun. He fought for the gun for three to five seconds. As soon as Sims felt the gun, it fired, burning his hand. Sims heard the loud shot go past him; he felt heat on his hand and his shoulder. The heat caused him to let go of the gun. It was later discovered that Sims's coat had two bullet holes, one in the top right shoulder, which appeared to be an entry hole, and the second in the back of the right shoulder, which appeared to be an exit hole.
At the time the first shot was fired, [Ortega], Mayes and Sims were all standing upright. After the first shot was fired, Sims looked at the gun, turned around and dropped to the ground for protection. Sims could not see anything. At that point, he did not know what Mayes, [Ortega] and the other person who had confronted them were doing. Prior to that point, the other person had not been doing anything aside from standing.
After falling to the ground, Sims grabbed for Mayes's shirt and tried to pull him down. Sims heard three more shots as he tried to pull Mayes to the ground, but he did not see what position Mayes was in at that time.
After the shooting stopped, Sims looked up and saw [Ortega] and the passenger run off. The duo ran to the car, got inside, backed up and drove away.
Mayes hit the ground right next to Sims but hopped right back up. Sims tried to grab Mayes. Mayes took about five steps and fell. Sims talked to Mayes, but Mayes did not respond. Sims, who was hysterical and yelling, stayed with Mayes until the police arrived.
Five citizen witnesses testified at trial. Joanne Parker, who lived in the area, heard two gunshots back to back. She looked out the window of her home and saw two males run and get into a car that sped off, made a U-turn, and drove away.
Karen Johnston, who also lived in the area, heard what she thought was a car backfiring. She went out to her backyard and determined that she had heard gunfire-five shots in quick succession. Johnston looked over her fence, heard one man screaming and saw a second man running to a car as she heard someone yell “[g]o, go, go.” The second man entered the car on the driver's side. Then the car, with the two occupants, backed up and drove away.
Sandra Swift, who also lived in the area, was watching a movie on her television when she heard a pop that she thought was a gunshot. A “few seconds” later, she heard three more shots. From her window, she saw two men hurriedly run down the street and jump into a car. The car made a U-turn and sped off.
Harold Fulkerson was standing in a parking lot approximately 200 yards away from the shooting scene. He heard “five or six gunshots” in rapid succession “about as fast as [someone could] pull the trigger.” He estimated that all of the shots were fired within a span of approximately three seconds. Because of his distance from the scene, he could not see the shooting or see or hear anything that had occurred prior to or after the shooting.
Diane Barber was driving her car and stopped at a stop sign at a nearby intersection. From a distance of 30 to 40 feet, she saw four males walking in two pairs and heading toward each other. It looked as if one or two words were exchanged, but she could not hear what was said. “[T]he victim” threw a punch, but she did not know whether he made contact. A scuffle ensued. The person accompanying the victim was trying to help him fight the others. To Barber, it seemed as if all four males began fighting. Ten seconds or less after she first observed the males, Barber heard at least two to three gunshots in very quick sequence. Barber thought all four men were upright when the shots were fired. She “gassed [it]”-pressed her gas pedal-and drove away. At that time, it appeared to her that all four men were “going to the ground.” She had no idea who had fired the gun.
Dr. Mark Super, chief forensic pathologist for the Sacramento County Coroner's Office, performed the autopsy on Mayes and testified as an expert regarding autopsy results and findings. Mayes sustained gunshot wounds to the right arm, right shoulder and right hip. He also had abrasions on both knees, on his left palm, and above his temple, which had occurred at or about the time he received the other injuries and which could have occurred around the time of his death or hours before. Mayes also had abrasions around the knuckles of his right hand. Dr. Super opined that the abrasions to Mayes's knees were “fairly characteristic of somebody just falling down on their knees, ” and the abrasions to his knuckles were consistent with Mayes putting out his hand during the fall. Dr. Super opined that the abrasion to Mayes's head was the result of his head impacting a broad surface such as the ground or a wall or something like that. The abrasions were also consistent with Mayes having been involved in a physical altercation, but Dr. Super opined that bruising to the hand is more common than abrasions to the hand in that scenario, and Mayes did not sustain any bruising.
The bullet that struck Mayes's right arm entered his forearm on the pinky finger side below the elbow, traveled in a straight line anatomically upward into his upper arm, and exited near his right armpit. Dr. Super opined that, given the bullet's path, Mayes's arm had to have been away from his body and his elbow had to have been bent somewhat backward, as if throwing a ball. Otherwise, the bullet would have entered his chest.
The gunshot wound to Mayes's right hip entered from the outside of his hip and exited on the inside of his right hip, traveling on a downward and slightly back-to-front path.
The gunshot wound to Mayes's right shoulder was fatal. It entered at the top of Mayes's shoulder close to the base of his neck and traveled anatomically straight down in a direction toward his feet. The bullet path was from right to left, not significantly frontward or backward. The bullet traveled behind his collarbone, struck his right lung, traveled through his heart, passed between two ribs, and came to rest in the front left portion of his chest. The bullet path indicated that the muzzle of the gun was anatomically above Mayes when the shoulder wound was inflicted.
Dr. Super opined that the gunshot wound to Mayes's shoulder was consistent either with Mayes having been bent forward and the shooter firing horizontally into Mayes's shoulder or the shooter being above Mayes. However, he acknowledged that he could not determine the sequence in which the gunshot wounds were inflicted, Mayes's exact position during any of the shots, or the time lapse involved in the shots. He agreed there was “[e]ssentially” “an endless combination” of possible positions of Mayes's body and the gun, and offered as an example that Mayes could have been hanging upside down while the shooter fired upward.
Dr. Super was asked about the proximity of the muzzle to Mayes in connection with only one of the three gunshot wounds-the wound to Mayes's hip. Dr. Super said there was nothing around that entrance wound to indicate whether it was or was not a close-range wound. He characterized the wound as being of “indeterminate[ ]range.”FN3 FN3. A jacket with DNA on the collar that could have come from [Ortega] or from one out of 110 Hispanics selected at random, also had a sleeve stained with blood that matched Mayes's DNA. [Ortega] contends this evidence showed that [Ortega] and Mayes were in close proximity during the shooting. However, there was no testimony about the nature of these bloodstains, i.e., whether they appeared to be spatter or transfer smears.
Because the fatal bullet traveled through his heart, Mayes would have collapsed 30 seconds following the infliction of the wound to his shoulder. He would have died within several minutes of collapsing from lack of pressure. It would have been possible for him to get off the ground and run a couple of feet before collapsing.
During closing argument, the prosecutor argued inferences that could be drawn from the evidence to establish the sequence of gunfire. She told the jury, “So we have this first gunshot. Maybe an accident? Maybe? Couple of people struggling for the gun. I don't know. But let's talk about the next gunshots because those are certainly no accident.” The prosecutor then went on to argue her theory of the sequence in which the three gunshot wounds were inflicted. She argued that the first wound Mayes sustained was the one to the hip, and it was inflicted while he was standing. The second was the wound to the forearm. It was inflicted while Mayes was in a position lower than [Ortega] and his arm was up in a defensive position. The final wound was the fatal gunshot to the shoulder that entered the top of Mayes's shoulder, traveled downward and penetrated his chest cavity. The prosecutor argued that Mayes was going down to the ground or was down on the ground when the fatal bullet was fired. Further, Mayes could not have had his own hands on the gun in a struggle for control of it when the fatal wound was inflicted.
Defense counsel argued the shooting was not intentional, deliberate or premeditated. He argued imperfect self defense and that [Ortega] pulled the gun only to scare Mayes. He suggested that pulling the gun's trigger was a “joint effort between the two guys grabbing the gun.” He emphasized that Dr. Super could not determine the exact sequence in which the gunshot wounds had been inflicted.

People v. Ortega, No. C065027, 2012 WL 1200930, at *1-4 (Cal.Ct.App. Apr. 10, 2012).

         On April 8, 2010, the jury found Ortega guilty of Count 1 (malice aforethought murder of Mayes) and found true the allegations attached to it. The jury found him not guilty of Count 2 (malice aforethought attempted murder of Sims) and its lesser included offense of attempted voluntary manslaughter. The trial court subsequently denied probation and sentenced Ortega to a term of 25 years to life imprisonment on Count 1, plus 25 years for the firearm use finding.

         Through counsel, Ortega appealed his conviction, arguing that: 1) there was insufficient evidence to sustain his Count 1 conviction; 2) the trial court failed to properly instruct on the lesser-included offense of unlawful act involuntary manslaughter; and 3) the trial court violated Ortega's right to counsel of his choice when it refused to allow him to discharge his retained attorney and refused to consider a new trial motion based on ineffective assistance of counsel. On April 10, 2012, the California Court of Appeal issued a reasoned, unpublished opinion unanimously affirming the judgment against Ortega. Ortega, 2012 WL 1200930, at *11. Ortega petitioned in the California Supreme Court for review of all three unsuccessful claims, which was denied without comment on July 11, 2012.

         Ortega next filed in the California Superior Court a pro se petition for habeas relief. In that petition, he argued that trial counsel was ineffective by: 1) failing to investigate a witness who gave a statement to police that he had been robbed by the victim two days prior to the confrontation in Ortega's case; 2) failing to file any pre-trial motions to reduce the murder and attempted murder charges; 3) failing to propose a voluntary manslaughter instruction; and 4) refusing to allow Ortega to testify. The superior court denied the petition in an unpublished, reasoned opinion issued on July 27, 2011. Ortega raised the same claims in a pro se habeas petition in the California Court of Appeal, which was summarily denied on September 15, 2011. Ortega also raised the claims in a pro se habeas petition in the California Supreme Court, which was denied without comment on February 29, 2012.

         Ortega, represented by counsel, then filed another petition for habeas relief in the California Supreme Court. In that petition, Ortega alleged that trial counsel was ineffective for failing to: 1) investigate and present other expert forensic testimony on bullet trajectories and pathology in order to explain the positions of the parties and the sequence of shots; 2) failing to investigate the availability of forensic evidence that might raise a reasonable doubt as to Ortega's culpability for first degree murder; and 3) “be aware that using the bullet trajectories to establish the position of the shooter and victims as well as the sequence of shots fired, or at least raising substantial doubts as to the prosecution's evidence on those points, was critical to the success of Ortega's defense.” The Supreme Court denied that petition without comment on December 18, 2013.

         While his second habeas petition in the California Supreme Court was pending, Ortega timely filed a counseled Petition for a Writ of Habeas Corpus to this Court on September 16, 2013. See 28 U.S.C. § 2244(d)(1)(A). He simultaneously moved for a stay in the federal proceedings pending exhaustion in the California Supreme Court, which was granted by a previously-assigned magistrate judge. Docket Nos. 2, 7. After the Supreme Court denied the petition, the stay was lifted. Docket No. 11. After briefing was completed, Ortega's retained counsel moved to withdraw as his attorney, which was granted. Docket Nos. 28, 30. Ortega's motions for appointment of counsel were denied without prejudice, Docket Nos. 29, 30, 32, 33, and Ortega is now appearing before this Court pro se.


         In his Petition before this Court, Ortega argues that: 1) there was insufficient evidence of intent to kill, deliberation, and premeditation to sustain his murder conviction; 2) the state courts unreasonably applied clearly established federal law and unreasonably determined the facts when it found harmless any error with respect to unlawful act involuntary manslaughter instructions; 3) the trial court erred in refusing to allow Ortega to discharge retained trial counsel; and 4) trial counsel was ineffective for failing to retain a forensic expert.


         Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” § 2254(d)(1), or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, ” § 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that contradicts controlling Supreme Court authority or “if the state court confronts a set of facts that are materially indistinguishable from a decision” of the Supreme Court, but nevertheless arrives at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000).

         The Supreme Court has explained that “clearly established Federal law” in § 2254(d)(1) “refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision.” Id. at 412. The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts. Early v. Packer, 537 U.S. 3, 10 (2002). Where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, “it cannot be said that the state court ‘unreasonabl[y] appli[ed] clearly established Federal law.'” Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted).

         To the extent that the Petition raises issues of the proper application of state law, they are beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was correctly applied). It is a fundamental precept of dual federalism that the states possess primary authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (a federal habeas court cannot reexamine a state court's interpretation and application of state law); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002).

         In applying these standards on habeas review, this Court reviews the “last reasoned decision” by the state court. See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004) (citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). A summary denial is an adjudication on the merits and entitled to deference. Harrington v. Richter, 562 U.S. 86, 99 (2011). Under the AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).


         A. Insufficiency of the Evidence (Ground 1)

         Ortega first argues that the evidence was insufficient to establish a specific intent to kill and premeditation. As articulated by the Supreme Court in Jackson, the federal constitutional standard for sufficiency of the evidence is whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in the original); see McDaniel v. Brown, 558 U.S. 120, 132-33 (2010) (reaffirming this standard). This Court must therefore determine whether the California court unreasonably applied Jackson. In making this determination, this Court may not usurp the role of the finder of fact by considering how it would have resolved any conflicts in the evidence, made the inferences, or considered the evidence at trial. Jackson, 443 U.S. at 318-19. Rather, when “faced with a record of historical facts that supports conflicting inferences, ” this Court “must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and defer to that resolution.” Id. at 326.

         It is a fundamental precept of dual federalism that the States possess primary authority for defining and enforcing the criminal law. See Engle v. Isaac, 456 U.S. 107, 128 (1982).

         Consequently, although the sufficiency of the evidence review by this Court is grounded in the Fourteenth Amendment, it must take its inquiry by reference to the elements of the crime as set forth in state law. Jackson, 443 U.S. at 324 n.16. A fundamental principle of our federal system is “that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.” Bradshaw v. Richey, 546 U.S. 74, 76 (2005); see West v. AT&T, 311 U.S. 223, 236 (1940) (“[T]he highest court of the state is the final arbiter of what is state law. When it has spoken, its pronouncement is to be accepted by federal courts as defining state law . . . .”). “Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension.” Sanchez-Llamas v. Oregon, 548 U.S. 331, 345 (2006) (quoting Smith v. Philips, 455 U.S. 209, 221 (1982)) (internal quotation marks omitted).

         Under Jackson, this Court's role is simply to determine whether there is any evidence, if accepted as credible by the trier of fact, sufficient to sustain conviction. Schlup v. Delo, 513 U.S. 298, 330 (1995). The United States Supreme Court has recently even further limited a federal court's scope of review under Jackson, holding that “a reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury.” Cavazos v. Smith, 132 S.Ct. 2, 4 (2011) (per curiam). Jackson “makes clear that it is the responsibility of the jury-not the court-to decide what conclusions should be drawn from evidence admitted at trial.” Id. at 3-4. Under Cavazos, “a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was ‘objectively unreasonable.'” Id. at 4 (quoting Renico v. Lett, 559 U.S. 766, 773 (2010)).

         Under California law, “[m]urder is the unlawful killing of a human being, . . . with malice aforethought.” Cal. Penal Code § 187(a). First degree murder includes murder perpetrated by “any . . . kind of willful, deliberate, and premeditated killing[.]” Cal. Penal Code § 189. Attempted premeditated murder requires proof that: (1) the defendant had the specific intent to kill the alleged victim; (2) he committed a direct but ineffectual act toward accomplishing the intended killing; and (3) the defendant acted willfully, deliberately, and with premeditation. See Cal. Penal Code §§ 664, 187(a).

         The type of evidence which courts have found sufficient to sustain a finding of premeditation and deliberation fall into three basic categories: (1) facts about how and what the defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing (i.e., planning activities); (2) facts about the defendant's prior relationship and/or conduct with the victim from which the jury could reasonably infer a motive to kill the victim; and (3) facts about the manner of the killing from which the jury could infer a preconceived design to take the victim's life. People v. Anderson, 447 P.2d 942, 949 (Cal. 1968). These three categories of evidence are not an exhaustive list, but “provide guidelines” for analysis. People v. Perez, 831 P.2d 1159, 1163 (Cal. 1992); see also Davis v. Woodford, 384 F.3d 628, 640 & n.3 (9th Cir. 2004) (applying Anderson guidelines on federal habeas review but noting admonition of California ...

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