United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT
OF HABEAS CORPUS [TWENTY-ONE DAY OBJECTION DEADLINE]
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE
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.
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.
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.)
Court adopts the Statement of Facts in the Fifth DCA's
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
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.
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).
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
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.
Legal Standard of Review
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.
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).
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.
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).
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).
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).
Review of Claims
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
State Court Opinion
contends the trial court violated Petitioner's due
process rights when it denied defense counsel's
Batson/Wheeler 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.
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
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.
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