United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE, UNITED STATES MAGISTRATE JUDGE
is a California state prisoner proceeding pro se with an
application for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. The action proceeds on the petition filed on
December 10, 2015,  ECF No. 1, which challenges
petitioner's 2011 convictions for kidnapping, rape,
robbery, and related offenses. Respondent has answered the
petition, and the time for petitioner to file a traverse has
expired. Accordingly, the matter has been submitted for
Proceedings In the Trial Court
was charged in the San Joaquin County Superior Court with:
(1) kidnapping for ransom or extortion in violation of Cal.
Penal Code § 209(a); (2-3) two counts of rape by force
or fear in violation of Cal. Penal Code §261(a)(2); (4)
forcible oral copulation in violation Cal. Penal Code
§288a(c)(2); (5) assault with intent to commit forcible
rape, sodomy, or oral copulation; (6) first degree robbery in
violation of Cal. Penal Code §211; (7) first degree
burglary in violation of Cal. Penal Code §459; and (8)
criminal threats in violation of Cal. Penal Code §422. 2
preliminary hearing, the victim identified petitioner as a
participant in her kidnapping. 4 RT 1157. She had
previously failed to pick petitioner's photograph out of
a lineup. 2 RT 364-365, 417-419. Petitioner filed a motion to
exclude evidence of the victim's identification at the
preliminary hearing, describing the identification as
“unduly suggestive.” CT 484-488. He also moved to
exclude any in-court identifications at trial as
impermissibly tainted by the events of the preliminary
hearing. Id. The trial court denied that motion
after finding that petitioner's challenge went to the
weight to be given to the victim's identification, rather
than its admissibility. RT 81-83.
The Evidence Presented At Trial
victim testified that, on the night of October 14, 2006, four
men broke into the bedroom where she was sleeping with her
children. One man beat her with a metal bat; another rifled
through her closet; and a third demanded to know where the
money was. The men were seeking money from the victim's
husband and ultimately determined that they would take the
victim, travel to the husband's place of work, and
threaten to kill her unless the husband paid them three
took the victim to an SUV, ordered her to sit in the second
row, and placed a shirt over her head to obscure her vision.
Two of the men sat to either side of her and removed her
nightgown and touched her breasts. They reached the
husband's place of employment - a Pollo Loco restaurant -
and found that it had already closed. They drove around the
parking lot and two of the men continued touching the
the driver headed toward the freeway and one of the men
sitting beside the victim forced her into the back of the SUV
and raped her. Then the man who had been sitting on the other
side of the victim did the same.
driver never got on the freeway and, instead, drove along a
road which ran beside a levee. Eventually he stopped and
ordered the victim out of the car. The driver then forced the
victim to orally copulate him. The victim asked for the
driver's shirt after a car drove by. When a second car
drove by, she managed to escape on foot. After the men drove
away in the SUV, the victim flagged a passing car and asked
them to call the police.
arrested one of the men - Ortega - on the morning of October
15, 2006. Ortega would later identify petitioner as one of
the men who sat beside the victim in the second row of the
SUV. The victim was unable to identify petitioner from a
photograph lineup in 2008. At ¶ 2009 preliminary
hearing, however, she identified petitioner as the driver of
the SUV. She had previously identified another man - Corral -
as the driver in mid-2008. A police officer involved in the
arrest of Corral noted that this may have been because
Corral's appearance had changed significantly by the time
of his 2009 preliminary hearing - his hair was longer, he had
shaved his goatee, and was now wearing glasses.
pled not guilty and denied the allegations against him. The
defense relied on Dr. Stacy Rilea, a doctor of psychology,
who testified as an expert on memory. Dr. Rilea testified
that memory is affected by stress and violence and that it
decays over time. She also testified that an identification
from a photographic lineup is more likely to be accurate
closer in time to the relevant event. Dr. Rilea further
stated that a person's confidence in an identification is
a poor predictor of its accuracy.
14, 2011, the jury found petitioner guilty on all counts. 2
CT 544-556. The jury also found true the enhancements that
the sex crimes were committed during commission of a
kidnapping. Id. On August 15, 2011, the court
sentenced petitioner to 62 years and four months to life with
the possibility of parole. 3 CT 782-785. II.
Post-Conviction Proceedings Petitioner timely
appealed, and the California Court of Appeal affirmed the
judgment of conviction on September 24, 2014. Lodged Doc. 1.
Petitioner then filed a petition for review with the
California Supreme Court on October 21, 2014. Lodged Doc. 6.
This petition was summarily denied on December 17, 2014.
Lodged Doc. 7.
then filed a petition for writ of habeas corpus with the
California Supreme Court on December 21, 2015. Lodged Doc. 8.
The California Supreme Court denied this petition for review
on March 30, 2016 with a citation to In re Robbins,
18 Cal.4th 770, 780 (1998). Lodged Doc. 9. Citations to
Robbins indicate that the petition was denied as
untimely. See Walker v. Martin, 562 U.S. 307, 313
operation of the prison mailbox rule, the instant federal
petition was filed December 10, 2015. ECF No. 1. Respondent
answered on September 2, 2016. ECF No. 18. Petitioner did not
file a traverse.
GOVERNING HABEAS RELIEF UNDER THE AEDPA
U.S.C. § 2254, as amended by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”),
provides in relevant part as follows:
(d) An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a state court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the 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;
(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.
statute applies whenever the state court has denied a federal
claim on its merits, whether or not the state court explained
its reasons. Harrington v. Richter, 131 S.Ct. 770,
785 (2011). State court rejection of a federal claim will be
presumed to have been on the merits absent any indication or
state-law procedural principles to the contrary. Id.
at 784-785 (citing Harris v. Reed, 489 U.S. 255, 265
(1989) (presumption of a merits determination when it is
unclear whether a decision appearing to rest on federal
grounds was decided on another basis)). “The
presumption may be overcome when there is reason to think
some other explanation for the state court's decision is
more likely.” Id. at 785.
phrase “clearly established Federal law” in
§ 2254(d)(1) refers to the “governing legal
principle or principles” previously articulated by the
Supreme Court. Lockyer v. Andrade, 538 U.S. 63,
71-72 (2003). Only Supreme Court precedent may constitute
“clearly established Federal law, ” but courts
may look to circuit law “to ascertain
whether…the particular point in issue is clearly
established by Supreme Court precedent.” Marshall
v. Rodgers, 133 S.Ct. 1446, 1450 (2013).
court decision is “contrary to” clearly
established federal law if the decision “contradicts
the governing law set forth in [the Supreme Court's]
cases.” Williams v. Taylor, 529 U.S. 362, 405
(2000). A state court decision “unreasonably
applies” federal law “if the state court
identifies the correct rule from [the Supreme Court's]
cases but unreasonably applies it to the facts of the
particular state prisoner's case.” Id. at
407-08. It is not enough that the state court was incorrect
in the view of the federal habeas court; the state court
decision must be objectively unreasonable. Wiggins v.
Smith, 539 U.S. 510, 520-21 (2003).
under § 2254(d) is limited to the record that was before
the state court. Cullen v. Pinholster, 131 S.Ct.
1388, 1398 (2011). The question at this stage is whether the
state court reasonably applied clearly established federal
law to the facts before it. Id. In other words, the
focus of the § 2254(d) inquiry is “on what a state
court knew and did.” Id. at 1399. Where the
state court's adjudication is set forth in a reasoned
opinion, §2254(d)(1) review is confined to “the
state court's actual reasoning” and “actual
analysis.” Frantz v. Hazey, 533 F.3d 724, 738
(9th Cir. 2008) (en banc). A different rule applies where the
state court rejects claims summarily, without a reasoned
opinion. In Richter, supra, the Supreme
Court held that when a state court denies a claim on the
merits but without a reasoned opinion, the federal habeas
court must determine what arguments or theories may have
supported the state court's decision, and subject those
arguments or theories to § 2254(d) scrutiny.
Richter, 131 S.Ct. at 786.
is also available under AEDPA where the state court
predicated its adjudication of a claim on an unreasonable
factual determination. Section 2254(d)(2). The statute
explicitly limits this inquiry to the evidence that was
before the state court.
Claim One: Ineffective Assistance of Counsel
Petitioner's Allegations and Pertinent State Court
argues that his trial counsel rendered ineffective assistance
by failing to object to the state's argument regarding
the definition of aider and abettor liability. ECF No. 1 at
5. Petitioner raised this claim for the first time in his
December 21, 2015 habeas petition to the California Supreme
Court. Lodged Doc. 8 at 3.
closing argument, the prosecutor argued, in relevant part:
Now, some of the laws are being mixed together here during
the arguments to make it - you know, there has to be an
agreement along with knowledge of whether or not other people
are going to do these things, and whether or not you're
actively facilitating - so it's mixing up those whole
ideas of - separate ideas of aiding and abetting, where you
know what the guy's going to do, and you go along with it
by facilitating it, by aiding it, or promoting it. Or
secondly, whether you have the aiding and abetting and what
they call the natural and probable consequences. Those are
two separate things. And conspiracy is yet another thing over
And so there doesn't have to be agreement to have aiding
and abetting. So it doesn't have to be that there's
an agreement when you have aiding and abetting. And, again, I
made that chart to kind of help break it down as to what
everybody was doing here and what we heard during the
. . .
And that being, for Philip Corral and Gabriel Langarica, the
kidnap for intent to extort for ransom purposes is direct
liability. Because they are both in there. And when they take
Martha out of there as a group, they are acting as a group.
They are all doing it. They all understand why they are doing