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Arciga v. Frauenheim

United States District Court, E.D. California

June 23, 2017

MARIO ARCIGA, Petitioner,
v.
SCOTT FRAUENHEIM, Warden, Respondent.

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

          JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE

         In 2012, Petitioner was sentenced to 25 years-to-life plus 19 years for his convictions on charges of forcible rape, kidnapping to commit rape, attempted lewd act on a child, and attempted kidnapping to commit a lewd act. In this action, Petitioner claims the trial court erred in refusing to sustain his Batson/Wheeler challenge and that there was insufficient evidence to support all of his convictions and the enhancement. The Court disagrees and recommends the petition be DENIED.

         I.PROCEDURAL HISTORY

         Petitioner was convicted in the Fresno County Superior Court on January 17, 2012, of forcible rape (Cal. Penal Code § 261(a)(2)), kidnapping to commit rape (Cal. Penal Code § 209(b)(1)), attempted lewd act on a child (Cal. Penal Code §§ 664/228(a)), and attempted kidnapping to commit a lewd act (Cal. Penal Code §§ 664/209(b)(1)). (Pet. at 1.) He is currently serving an indeterminate sentence of 25 years-to-life plus 19 years. Id.

         Petitioner appealed to the California Court of Appeal, Fifth Appellate District (“Fifth DCA”). The Fifth DCA affirmed the judgment on April 11, 2014. (Resp't's Answer, Ex. A.) Petitioner then filed a petition for review in the California Supreme Court. The petition was summarily denied on June 25, 2014. (Pet. at 2.)

         II.FACTUAL BACKGROUND

         The Court adopts the Statement of Facts in the Fifth DCA's unpublished decision[1]:

M.F. walked along a dirt road beside some railroad tracks in Fresno shortly before noon on August 18, 2010, heading for a bus stop. Arciga drove up to her in a pickup truck. He stopped 10 to 15 feet away and lunged out, hitting her on the head as he did so. He wore a black ski mask with holes for his eyes and mouth. She fell to the ground and screamed. He put his hand over her mouth, saying he would hit her again if she continued screaming. He lifted her shirt and bra and put his mouth on her breast. She asked what he wanted. He wanted sex. He raised her from the ground, took her to the truck, and put her inside. Fearing he would hurt or kill her, she did not try to escape. As M.F. sat on the seat, Arciga pulled her shorts and underwear off, unbuttoned his pants, and pulled out his penis. Then he lay on top of her, pinned her arms to her sides with his, and placed his penis inside her vagina. She freed a hand and tried to remove the ski mask, but he prevented her. When he was finished, he put his penis back in his pants and said “thanks.” M.F. put her shorts back on, got out of the truck and walked away. As Arciga drove away, M.F. typed the truck's license plate number into her cell phone. She then walked across a field to a strawberry stand and called 911.
Around 8:00 a.m. the next day, August 19, 2010, 12-year-old C.M. was walking to school. As she approached the school, Arciga drove up in a truck and got out, wearing a black ski mask and holding a gun. He approached within four or five feet and told her to get in the truck. She said no, because she was going to be late for school. Arciga told her to take off her shirt. C.M. said no again. She backed up against the schoolyard fence, afraid Arciga would rape or kill her. He kept repeating his order to get in the truck, with the gun pointed at her, but she gave him the same answer. After 5 or 10 minutes, Arciga got back in the truck and left. C.M. went to the school entrance and reported the attack to a security guard.
Based on C.M.'s description of the truck, police pulled Arciga over and arrested him the same morning. Inside the cab of the truck were an air pistol and a black ski mask.
For purposes of DNA testing, samples were taken from M.F., Arciga, and a stain on the seat of a pickup truck. M.F. had identified the truck. DNA from sperm cells found in M.F.'s vagina matched Arciga's DNA profile. The truck seat stain contained DNA matching the profiles of both M.F. and Arciga.
The district attorney filed an information charging Arciga with four counts: (1) forcible rape (Pen.Code, § 261, subd. (a)(2));1 (2) kidnapping to commit rape (§ 209, subd. (b)(1)); (3) attempting to commit a lewd act against a child (§§ 288, subd. (a), 664); and (4) attempting to kidnap a child to commit a lewd act (§§ 209, subd. (b)(1), 664). For count 1, the information alleged the special circumstance that Arciga kidnapped the victim. (§ 667.61, subds. (a), (c)(1), (d)(2).) For counts 3 and 4, the information alleged that Arciga used a deadly weapon. (§ 12022.3, subd. (a).)
At trial, Arciga's defense was that he and M.F. had been dating for two months on August 18, 2010, and that she had consensual sex with him at his house that day. He admitted that he parked his truck near C.M.'s school on August 19, 2010, but denied he confronted C.M. or tried to make her get in the truck. M.F. testified that she had never met Arciga before he raped her.
The jury found Arciga guilty as charged and found the kidnapping and weapon-use allegations true. For count 1, the court imposed a sentence of 25 years to life. For count 4, the court imposed a sentence of 9 years, plus 10 years for the weapon enhancement. Sentences for counts 2 and 3 were imposed and stayed pursuant to section 654. The total unstayed sentence was an indeterminate term of 25 years to life plus a determinate term of 19 years.

People v. Arciga, No. F064382, 2014 WL 1400962, at *1-2 (Cal.Ct.App. Apr. 11, 2014), review denied (June 25, 2014).

         III.DISCUSSION

         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 Fresno 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 412-13.

         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 at 637 (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. at 520; 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.” Id.; 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

         In this action Petitioner claims: 1) He was denied his rights under the Fourteenth Amendment to the Constitution when the trial court found that he had not made a prima facie case of purposeful racial discrimination by the prosecution in its exercise of peremptory challenges; 2) He was denied his rights under the Fourteenth Amendment to the Constitution when a kidnapping enhancement was imposed, and he was convicted of aggravated kidnapping, based on insufficient evidence; and 3) He was denied his due process rights under the Fourteenth Amendment when he was convicted of attempted kidnapping to commit a lewd act based on insufficient evidence.

         1. Batson/Wheeler Challenge

         a. State Court Opinion

         Petitioner contends the trial court violated Petitioner's due process rights when it denied defense counsel's Batson/Wheeler[2] motion, finding defense counsel had failed to make a prima facie case of purposeful racial discrimination in its exercise of peremptory challenges. The claim was presented on direct appeal to the Fifth DCA, where it was rejected in a reasoned decision.

         The appellate court rejected the claim as follows:

Arciga maintains that the trial court erred when it denied his motion under Wheeler and Batson. As we will explain, the record supports the trial court's decision.
In 1978, the California Supreme Court held that the California Constitution prohibits the exercise of peremptory challenges on the basis of group bias in a criminal case. (Wheeler, supra, 22 Cal.3d at p. 276.) “[T]he use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the right to trial by a jury drawn from a representative cross-section of the community....” (Id. at pp. 276-277.) In 1986, the United States Supreme Court similarly held that the equal protection clause of the 14th Amendment “forbids the prosecutor to challenge potential jurors solely on account of their race....” (Batson, supra, 476 U.S. at p. 89.)
A defendant can raise the Wheeler/Batson issue by making a motion in the trial court. To prevail, the defendant must first establish a prima facie case “‘by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.'” (Johnson v. California (2005) 545 U.S. 162, 168 [quoting Batson] (Johnson).) It is not necessary at this stage for the defendant to show that the peremptory challenges at issue were more likely than not based on a discriminatory purpose. The defendant's showing need only raise an inference of such a purpose. (Ibid.) Next, the burden shifts to the prosecution to produce race-neutral reasons why jurors have been excluded. Finally, on the basis of both sides' submissions, the trial court must decide whether purposeful discrimination has been shown. (Ibid.)
In the process of selecting the 12 regular jurors in this case, the court reached the 56th name on the random juror selection sheet. Of this group, four received hardship deferrals. Of the remaining 52, 18 had Spanish surnames. The prosecution exercised 15 peremptory challenges, of which 10 were used to excuse prospective jurors with Spanish surnames. The defense exercised peremptory challenges to excuse four other prospective jurors with Spanish surnames. An additional two were excused for cause. Two remained who were seated on the jury. To summarize, 34.6 percent of the panel from which the jury was selected had Spanish surnames; the prosecution used 66.7 percent of its peremptory challenges to excuse those with Spanish surnames; and 16.7 percent of the jurors that were seated had Spanish surnames.
After jury selection was complete, the court made a record of a Wheeler/Batson motion the defense had made during a ...

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