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Langarica v. Frauenheim

United States District Court, E.D. California

July 12, 2017

SCOTT FRAUENHEIM, Warden, [1] Respondent.



         Petitioner 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, [2] 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 decision.


         I. Proceedings In the Trial Court

         A. Preliminary Proceedings

         Petitioner 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[3]; (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 CT 371-379.[4]

         At a preliminary hearing, the victim identified petitioner as a participant in her kidnapping. 4 RT 1157.[5] 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.

         B. The Evidence Presented At Trial

         1. Prosecution Case

         The 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 thousand dollars.

         They 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 victim's breasts.

         Eventually 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.

         The 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.

         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.

         2. Defense Case

         Petitioner 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.

         C. Outcome

         On June 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.

         Petitioner 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 (2011).

         By operation of the prison mailbox rule, the instant federal petition was filed December 10, 2015.[6] ECF No. 1. Respondent answered on September 2, 2016. ECF No. 18. Petitioner did not file a traverse.


         28 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; 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.

         The 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.

         The 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).

         A state 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).

         Review 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.

         Relief 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.


         I. Claim One: Ineffective Assistance of Counsel

         A. Petitioner's Allegations and Pertinent State Court Record

         Petitioner 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.

         During 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 here.
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 testimony.
. . .
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 ...

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