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Barrera v. Muniz

United States District Court, E.D. California

June 26, 2017

ENRIQUE BARRERA, Petitioner,
v.
W.L. MUNIZ, Respondent.

          FINDINGS AND RECOMMENDATIONS

          DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE

         Petitioner, Enrique Barrera, is a state prisoner proceeding pro se and in forma pauperis with a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Barrera challenges a judgment of conviction entered against him on December 14, 2011 in the Solano County Superior Court for one count of assault by a life prisoner with personal infliction of great bodily injury and one count of possession of a weapon while confined in a penal institution. Barrera seeks federal habeas relief on the following grounds: (1) the trial court's refusal to give a modified instruction on imperfect self-defense was prejudicial error; (2) the instructional error deprived him of the opportunity to present a defense that he lacked the requisite malice and deprived him of his federal and state constitutional rights to due process; (3) the evidence was insufficient to establish that he acted with malice; (4) the evidence was insufficient to establish that he did not act in self-defense. As discussed below, Barrera's habeas petition should be denied.

         I. BACKGROUND

         A. Factual Background

         In an unpublished opinion affirming Barrera's conviction, the California Court of Appeal for the First Appellate District provided the following factual summary:

On February 14, 2010, Barrera was an inmate at the California State Prison facility in Solano, serving a life term for torture. At about 6:20 a.m., Correctional Officers Dante Viloria and Juan Granadoz observed Barrera beating a fellow inmate, Guillermo Chavez. No other inmates were near them at the time. Officer Granadoz observed Barrera “striking Chavez in the facial area . . . several times” with both hands. Chavez was “on the ground, like in a fetal position, trying to cover his face.” Viloria observed Barrera “on top of Inmate Chavez . . . continuously punching on Inmate Chavez on the head and the facial area . . . with closed fists.” Chavez was “tr[ying] to protect himself, but he just got overpowered by Inmate Barrera.”
Granadoz and Viloria ordered the prisoners to “stop fighting” and ordered Barrera to “get down, ” but he did not comply. They sprayed both inmates with pepper spray in the facial area, but Barrera continued to punch Chavez. After he ran out of pepper spray, Granadoz “transitioned to [his] baton” in order to “get [Barrera] off of Mr. Chavez.” He struck Barrera with the baton in the left leg once, but Barrera continued hitting Chavez. Barrera finally stopped hitting Chavez when one of the prison's roof gunners shot a rubber bullet at him, hitting him in the back. Officers were then “able to get Mr. Barrera off of Chavez, onto the ground . . . to handcuff him and escort him to the Center Complex.”
Barrera claimed Chavez prevented him from complying with the officers' orders to stop fighting because Chavez had grabbed his arm. Granadoz never saw Chavez hit Barrera, explaining “[Chavez] was pretty much defending himself at the time of the incident.” Viloria observed Chavez and Barrera initially “exchanging blows, ” but then Chavez was “tr[ying] to protect himself.”
After the officers pulled Barrera off Chavez, they noticed Chavez had a “very thin piece of metal, sticking out of his left eye [that] . . . was hard to notice at first because there was a lot of blood.” He also had a bruise on the left side of his head. They escorted Chavez to the prison clinic, where nurses called an ambulance. He was transported to VacaValley Hospital, then transferred to U.C. Davis Medical Center because of the severity of his injuries. A surgeon removed a “[m]etal-looking wire” from his eyeball and closed the wound with sutures. The wire was “a little over two inches long . . . broken off on one end [with] . . . a sharp point at the other end.” A laceration above Chavez's eye was also closed with sutures. In contrast, the correctional officers observed no injuries on Barrera.
Barrera claimed he did not have a weapon or puncture Chavez's eyeball with the wire, and he punched Chavez in either self-defense or imperfect self-defense. He testified that when he greeted Chavez that morning as they exited the building, he put his hand over Chavez's shoulder and Chavez turned around and struck him on his inner elbow, “like a sting, rubber-band type of thing.” The “sting” caused “a little redness, with like a hole, scratch mark.” He saw Chavez drop an object, but could not see what it was. Barrera “tried to step back” while Chavez approached him “with hands up.” He did “[w]hat anybody would do. I tried to defend myself. [¶] . . . [¶] I tried to subdue the subject and take him down.” He admitted he punched Chavez with his fists, but denied “strik[ing] Mr. Chavez with a piece of wire.” Barrera's attorney asked him “Did you feel, at this point, after Mr. Chavez struck you, that you were in danger of being injured?” Barrera responded “Well, um, it's interesting. When you are in prison, when something like this happens, of course.” Later, on redirect examination, his attorney asked: “[B]ased on what Mr. Chavez did in the yard, when he struck you, did [you] feel you needed to defend yourself?” Barrera responded “Very much.”
Barrera testified his prison paperwork mistakenly identified him as a sex offender by putting an “R” after his name, and Chavez had seen this paperwork. Fermin Rubio, a retired correctional officer and investigator, testified an “‘R' suffix is placed on an inmate classification score” if he or she “has a requirement to register as a sex offender.” This would include someone who had been convicted of child molestation. Rubio stated other inmates look upon child molesters “with disdain, ” it is “not impossible for another inmate to have access to [a] piece of mail” that might contain the “R” suffix, and a prisoner with an “R” suffix would have “reason to be concerned out in the general population.” Rubio had not interviewed Chavez, however, to determine if he knew about Barrera's background.

People v. Barrera, A134600, 2013 WL 1802667, at *1-2 (Cal.Ct.App. Apr. 30, 2013) (alterations in original).[1]

         On federal habeas review, “[f]actual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (citing 28 U.S.C. § 2254(e)(1)); Davis v. Ayala, 135S.Ct. 2187, 2199-2000 (2015) (citation omitted) (“State-court factual findings . . . are presumed correct; the petition has the burden of rebutting the presumption by clear and convincing evidence.”). Unless, the petitioner submits clear and convincing evidence to the contrary, a federal habeas court may rely on a state appellate court's recitation of the facts to rule on a habeas petition. See Id. This procedure is particularly appropriate where the petitioner “has [not] challenged these findings.” Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009); see also Moses v. Payne, 555 F.3d 742, 746 n.1 (9th Cir. 2009); Tilcock v. Budge, 538 F.3d 1138, 1141 (9th Cir. 2008).

         Here, Barrera challenges only a few immaterial details of the Court of Appeal's determination of the facts. For instance, whereas the Court of Appeals determined that Officer Granadoz struck only Barrera with the baton, Barrera asserts that he struck both him and Chavez. Compare Barrera, 2013 WL 1802667, at *1, with (ECF No. 42 at 8.) Likewise, whereas the Court of Appeal determined that a roof gunner shot Barrera in the back with the rubber bullet, Barrera asserts that the gunner tried to hit him but hit Chavez instead. Compare Barrera, 2013 WL 1802667, at *1, with (ECF No. 42 at 10.) Therefore, the court will rely on the Court of Appeal's recitation of the facts to rule on the instant habeas petition. In any event, the court has reviewed the record and finds that it supports the Court of Appeal's factual determinations. Compare Barrera, 2013 WL 1802667, at *1-2, with (ECF No. 33 & Exs. 1-10.)

         B. Procedural Background in State Court

         “The Solano County District Attorney charged Barrera with assault by a life prisoner with personal infliction of great bodily injury (Pen. Code, §§ 4500, 12022.7, subd. (a)) and possession of a weapon while confined in a penal institution. (§ 4502.)” Id. at *2. “The information also alleged Barrera had a prior serious felony conviction (§ 667, subd. (a)), a prior strike conviction (§ 1170.12), and two prison priors. (§ 667.5, subd. (b).).” Id. “A jury found Barrera guilty of both offenses and found the enhancing allegation true.” Id.; see also (ECF No. 33-1 at 120-21.) “The court sentenced him to 12 years to life for the assault by a life prisoner charge (nine years for the assault and three years for the allegation of infliction of great bodily injury).” Barrera, 2013 WL 1802667, at *2. “The court also sentenced him to two years for the custodial possession of a weapon, five years for the prior felony conviction allegation and one year for the prior prison term allegation.” Id. at *2; see also (ECF No. 33-1 at 151-57.)

         On April 30, 2013, the California Court of Appeal stayed the two-year sentence for the custodial possession of a weapon but otherwise affirmed the trial court's judgment. Barrera, 2013 WL 1802667, at *5. The California Supreme Court denied the petition for review on July 10, 2013. (ECF No. 33-3 at 195.)

         C. Procedural Background in Federal Court

         On September 29, 2014, Barrera filed a habeas petition in the Eastern District of California. (ECF No. 1.) In this habeas petition, Barrera asserted the following claims: (1) the court's refusal to give a modified instruction on imperfect self-defense was prejudicial error; (2) the instructional error deprived him of the opportunity to present a defense that he lacked the requisite malice and deprived him of his federal and state constitutional rights to due process; (3) the evidence was insufficient to establish that he acted with malice; (4) the evidence was insufficient to establish that he did not act in self-defense; and (5) the sentence on the weapon possession charge should have been stayed pursuant to California Penal Code § 654. (ECF No. 32-1 at 8; ECF No. 42 at 6.)

         On December 10, 2014, the state moved to dismiss. (ECF No. 11.) The state argued that Barrera failed to exhaust administrative remedies because he failed to raise claims (3)-(5) in his petition for review in the California Supreme Court. (Id. at 3.) Furthermore, the state asserted that claim (5) was moot because the California Court of Appeal granted the requested relief. (Id. at 3 n.2.)

         On January 1, 2015, Barrera moved to amend his habeas petition to delete claim (5) and to stay the case so that he could exhaust claims (3) and (4). (ECF No. 14 at 1.) On February 18, 2015, he filed a habeas petition in the Solano County Superior Court, which was denied on June 4, 2015. (ECF No. 28 at 79-81.)

         On November 11, 2015, the court adopted findings and recommendations issued on July 23, 2015. (ECF Nos. 19, 23.) The court granted the state's motion to dismiss and denied Barrera's motion to stay. (ECF No. 19 at 6.) Further, the court ordered Barrera to file an amended habeas petition containing only his exhausted claims (i.e., claims (1) and (2)), or to file the amended petition with a motion to stay pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003). (Id. at 7.)

         On December 16, 2015, the California Supreme Court summarily denied Barrera's habeas petition, citing In re Dexter, 25 Cal.3d 921, 925-26 (1979). (ECF No. 28 at 78.)

         On January 6, 2016, the court noted that the California Supreme Court denied Barrera's habeas petition. (ECF No. 27 at 2.) Thus, the court ordered him “to file a second amended petition containing all of his exhausted claims.” (Id.)

         On February 10, 2016, Barrera filed a second amended habeas petition (“second habeas petition”), which is the operative petition. (ECF No. 28.) In his second habeas petition, Barrera re-alleges claims (1)-(4) above. (See ECF No. 28 at 3-12; see also ECF No. 4 at 11, 16, 19, 31.)

         The state responded to the second habeas petition on May 16, 2016. (ECF No. 32.) Regarding claim (1), the state contends that “[t]he state's court's determination that the imperfect self-defense instruction was correct under state law is binding on this Court.” (ECF No. 32-1 at 12.) Concerning claim (2), the state contends that, because no instructional error occurred, Barrera was not “deprived of his right to present a defense of imperfect self-defense based on his [allegedly] honest but unreasonable belief that he was in imminent danger of suffering some bodily harm, even if not great.” (Id. at 14.) As to claims (3) and (4), the state argues that they are untimely, unexhausted, procedurally defaulted, and substantively meritless. (Id. at 15-24.)

         On August 30, 2016, Barrera filed a traverse. (ECF No. 42.) Regarding claim (1), Barrera asserts that his allegedly actual belief that he was in imminent danger of bodily harm-as opposed to “great” bodily harm-negated the “malice aforethought” element of the crime of assault by a life prisoner with personal infliction of great bodily injury. (Id. at 12.) Regarding claim (2), he asserts that the alleged instructional error deprived him of his due process rights to present a defense. (Id. at 16.)

         Barrera asserts that claims (3) are (4) are timely, exhausted, and not procedurally defaulted for three reasons: (1) In re Dexter allegedly does not apply to criminal cases; (2) he pursued his claims before the California Court of Appeals; and (3) his counsel rendered ineffective assistance by failing to raise these claims before the California Supreme Court. (See id. at 19-20.)

         Also, Barrera asserts that both claims are substantively meritorious because the evidence was insufficient to prove that he acted with malice and not in self-defense. (See id. at 23-35.) Following is the court's summary of Barrera's characterization of his evidence, much of which he contends the state failed to refute:

Chavez stabbed him in his inner elbow with a sharp object, which fell to the ground. (Id. at 23.) Then Chavez came after him with his hands up. (Id.) Barrera defended himself, they wrestled, and he overpowered Chavez. (Id.) They continued to fight because Chavez had a hold of his arm and would not let go, and he thought that Chavez might still injure him. (Id. at 23-25.) He believed he had to defend himself. (Id. at 23.) He did not possess the wire that was found in Chavez's eye or stab Chavez with it. (Id.)
None of the state's witnesses saw how the fight started or saw him possess the wire. (Id.) Although some witnesses said that he was uninjured, they did not testify that they ...

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