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Serrano-Aguilar v. Beard

United States District Court, E.D. California

August 31, 2017

JESUS ENRIQUE SERRANO-AGUILAR, Petitioner,
v.
JEFFREY BEARD, Respondent.

          FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT OF HABEAS CORPUS

          SHEILA K. OBERTO, UNITED STATES MAGISTRATE JUDGE

         Petitioner, Jesus Enrique Serrano-Aguilar, [1] is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He alleges three grounds for relief: (1) a due process violation arising from the trial court's abusing its discretion and denying Petitioner's Pitchess motion; (2) ineffective assistance of trial counsel based on counsel's failure to articulate the need for a continuance; and (3) submission of the gang enhancement to the jury on an erroneous theory. Respondent contends that ground three is procedurally barred and that, in any event, Petitioner has failed to establish a basis for habeas relief on any of his claims.

         I. Factual Background [2]

         A. The Underlying Incident

         On April 3, 2011, Bakersfield Police Officers Matthew Tramel and Joe Cooley, both of whom were members of the gang unit, were on patrol in a marked car when they observed Petitioner riding a bicycle against traffic. When Tramel activated his lights and siren, Petitioner began to pedal vigorously in an apparent attempt to escape the officers. Tramel pulled the squad car parallel with Petitioner, and repeatedly ordered Petitioner to stop. Petitioner continued to accelerate while telling the officers that he had no brakes.

         When Petitioner finally stopped, Tramel got out of the squad car and ordered Petitioner to turn around and put his hands on his head. Instead of turning, Petitioner took a step away, then pulled away when Tramel grabbed his hand. By each seizing one of Petitioner's hands, Tramel and Cooley were able to control and handcuff Petitioner.

         Tramel asked Petitioner if he had anything illegal “on him.” Petitioner disclosed that he had a gun in his right front pants pocket. Tramel removed a loaded .32-caliber pistol loaded with three live rounds from Petitioner's pocket. The gun was operational.

         After reading Petitioner the Miranda[3] warnings, Tramel asked him why he was fleeing the officers. Petitioner replied that he did not want to go to jail. Tramel testified that:

[Petitioner] stated that he was delivering it to another member of the Colonia Bakers. I believe his words were to the effect of he was delivering the gun to a “Colonia homie.” Which I had him elaborate on. Which I asked him to elaborate on. He said it was another member of the Colonia Bakers criminal street gang.

         Petitioner stated that he was a member of the Colonia Bakers criminal street gang. He had friends and family in the gang.

         B. Gang Expert Testimony

         Bakersfield Police Officer Isaac Aleman, who was assigned to the gang unit, testified to his opinion that Petitioner was a member of the Colonia Bakers criminal street gang on April 3, 2011. The Colonia Bakers, a subset of the Sureño criminal street gang, engage in an ongoing pattern of criminal activity including illegal weapons possession, robbery, and murder. Petitioner's membership was evidenced by his tattoos and self-identification as a gang member.

         Petitioner bore a tattoo across the back of his head that read “Colonia” in five-inch letters. “Eastside” was tattooed on Petitioner's right forearm, and Colonia was tattooed on his left hand. The letter C was tattooed on Petitioner's index finger, and a skull typical of the Colonia Bakers street gang was tattooed on the top of his hand. Tattooed on his shoulder was “RIP colonieros” and the names “Shrek” and “Crow.” Shrek and Crow were the monikers of two Colonia Bakers gang members murdered by members of a rival gang.

         To ensure prisoner safety, when booking an individual into jail or prison, officers typically ask the prisoner whether he is a gang member or has other enemies. When booked into the county jail on April 3, 2011, Petitioner stated that he belonged to “South” and his clique was Colonia. Petitioner also claimed South and Colonia in bookings on July 28, 2002; July 31, 2009, and September 12, 2010. On December 2, 2004, and May 6, 2007, Petitioner claimed South. In the course of the September 2010 booking, Petitioner told Officer Ryan Kroeker that he had belonged to the Colonia Bakers gang “for a long time.”

         II. Procedural Background

         Following trial, a Kern County jury convicted Petitioner of (1) possession of a firearm as a felon (former Cal. Penal Code § 12021(a)(1)), (2) active participation in a criminal street gang (Cal. Penal Code § 186.22(a)), and (3) resisting a police officer (Cal. Penal Code § 148(a)(1)). The jury found true the allegation that Petitioner committed the firearm offense for the benefit of, at the direction of, or in association with a criminal street gang with specific intent to promote, further, or assist in criminal conduct by gang members (Cal. Penal Code § 186.22(b)(1)). The parties stipulated to Petitioner's prior felony convictions. The trial court sentenced Petitioner to an aggregate term of 15 years in prison.

         Petitioner filed a direct appeal to the California Court of Appeal, which reversed Petitioner's conviction on count two but affirmed the remainder of the judgment. The California Supreme Court summarily denied the petition for review.

         On February 23, 2015, Petitioner filed a federal petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

         III. Standard of Review

         A person in custody as a result of the judgment of a state court may secure relief through a petition for habeas corpus if the custody violates the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. 362, 375 (2000). 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 thereafter. Lindh v. Murphy, 521 U.S. 320, 322-23 (1997). Under the statutory terms, the petition in this case is governed by AEDPA's provisions because Petitioner filed it after April 24, 1996.

         Habeas corpus is neither a substitute for a direct appeal nor a device for federal review of the merits of a guilty verdict rendered in state court. Jackson v. Virginia, 443 U.S. 307, 332 n. 5 (1979) (Stevens, J., concurring). Habeas corpus relief is intended to address only "extreme malfunctions" in state criminal justice proceedings. Id. Under AEDPA, a petitioner can prevail only if he can show that the state court's adjudication of his claim, on the merits:

(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 413.

         "By its terms, § 2254(d) bars relitigation of any claim 'adjudicated on the merits' in state court, subject only to the exceptions set forth in §§ 2254(d)(1) and (d)(2)." Harrington v. Richter, 562 U.S. 86, 98 (2011).

         As a threshold matter, a federal court must first determine what constitutes "clearly established Federal law, as determined by the Supreme Court of the United States." Lockyer, 538 U.S. at 71. To do so, the Court must look to the holdings, as opposed to the dicta, of the Supreme Court's decisions at the time of the relevant state-court decision. Id. The court must then consider whether the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law." Id. at 72. The state court need not have cited clearly established Supreme Court precedent; it is sufficient that neither the reasoning nor the result of the state court contradicts it. Early v. Packer, 537 U.S. 3, 8 (2002). The federal court must apply the presumption that state courts know and follow the law. Woodford v. Visciotti, 537 U.S. 19, 24 (2002). The petitioner has the burden of establishing that the decision of the state court is contrary to, or involved an unreasonable application of, United States Supreme Court precedent. Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996).

         "A federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Lockyer, 538 U.S. at 75-76. "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Thus, the AEDPA standard is difficult to satisfy since even a strong case for relief does not demonstrate that the state court's determination was unreasonable. Harrington, 562 U.S. at 102.

         IV. Due Process: Denial of Pitchess[4] claim

         As the first ground for habeas relief, Petitioner contends that the trial court violated his right to due process by denying a continuance to permit Petitioner to file a Pitchess motion. Respondent counters that because Petitioner has failed to show that denying ...


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