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Lopez v. People

United States District Court, E.D. California

November 16, 2017

JESUS ANDRES LOPEZ, Petitioner,
v.
PEOPLE OF THE STATE OF CALIFORNIA Respondent.

          FINDINGS AND RECOMMENDATIONS.

          EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE.

         Petitioner is a state prisoner proceeding without counsel with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on June 19, 2012 in the Superior Court of Colusa County on charges of: (1) one count of orally copulating a child under fourteen; (2) two counts of committing lewd acts on a child under the age of fourteen; (3) one count of sodomizing a child under the age of fourteen; (4) six[1] counts of exhibiting harmful matter to a minor; (5) one count of orally copulating a child under sixteen; (6) one count orally copulating a disabled person; (7) two counts of committing lewd acts on a child under sixteen; (8) one count sodomizing a child under sixteen; and (9) one count of sodomizing a disabled person. He seeks federal habeas relief on the following grounds: (1) prosecutorial misconduct resulted in an unfair trial; (2) his convictions are not supported by sufficient evidence; and (3) his due process rights were violated by the trial court's decision to admit evidence of a prior, uncharged sex offense. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.

         I. Background

         In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following procedural and factual summary:

         Defendant Jesus Andres Lopez was convicted of 16 counts of various sex crimes against seven boys. He asserts reversible error on the following grounds:

1. The prosecutor committed misconduct in his rebuttal jury argument;
2. Insufficient evidence supports his six convictions of exhibiting harmful matter to a minor;
3. The trial court erred by admitting evidence of a prior uncharged sex crime;
4. The trial court imposed unauthorized restitution and parole revocation fines; and
5. The abstract of judgment incorrectly records his presentence custody credits.
In addition, the Attorney General asks us to modify the judgment to impose sentences on subordinate consecutive terms in the correct manner and to order the abstract of judgment be similarly corrected. Defendant agrees with the Attorney General's requests.
We reverse the judgment as to two of the convictions for exhibiting harmful matter; we modify the judgment to impose the correct restitution and parole revocation fines and sentences on the subordinate consecutive terms; and we order the abstract of judgment amended to record defendant's sentencing, restitution fines, and presentence custody credit accurately. In all other respects, we affirm the judgment.

         FACTS

         We need not recite all of the sordid facts in order to address defendant's contentions. Suffice it to say, defendant, who turned 39 years old three days after trial in 2012, was convicted of committing the following crimes against seven boys in 2010 and 2011:

One count of orally copulating a child under the age of 14 (Pen.Code, § 288a, subd. (c)(1))1 (count I);
Two counts of committing lewd acts on a child under the age of 14 (§ 288, subd. (a)) (counts II and XVII);
One count of sodomizing a child under the age of 14 (§ 286, subd. (c)(1)) (count III);
Six counts of exhibiting harmful matter to a minor (§ 288.2, subd. (a)) (counts IV, VIII, XVI, XVIII, XIX, and XX);
One count of orally copulating a child under the age of 16 (§ 288a, subd. (b)(2)) (count IX);
One count of orally copulating a disabled person (§ 288a, subd. (g)) (count X);
Two counts of committing lewd acts on a child under the age of 16 (§ 288, subd. (c)(1)) (counts XI and XIV);
One count of sodomizing a child under the age of 16 (§ 286, subd. (b)(2)) (count XII); and
One count of sodomizing a disabled person (§ 286, subd. (g)) (count XIII).
The jury also found true a multiple victim enhancement under section 667.61, subdivisions (b), (c)(8), and (e)(4), as to counts II and XVII.
The trial court sentenced defendant to state prison for an indeterminate term of 30 years to life, plus 19 years four months, calculated as follows: Consecutive 15 years to life terms on counts II and XVII (lewd acts on a child under 14) pursuant to the multiple victim enhancement; a consecutive upper term of eight years on count III (sodomy on a child under 14); consecutive middle terms of six years stayed except for one-third of the middle term sentences of two years on counts I, X, and XIII (oral copulation of a child under 14, oral copulation of a disabled person, and sodomy of a disabled person); and consecutive middle terms of two years stayed except for one-third of the middle term sentences of eight months on counts IV, VIII, XVI, XVIII, XIX, and XX (exhibiting harmful matter to a minor) and counts XI and XIV (lewd acts on a child under 16).
The court also imposed and stayed under section 654 the middle term sentences of two years on counts IX and XII (oral copulation of a child under 16 and sodomy of a child under 16).
The court imposed restitution and parole revocation fines of $100, 000 each. It also granted defendant a total of 499 days of custody credit; 434 days for actual custody and 65 days for worktime credits.

People v. Lopez, No. C072072, 2014 WL 5796683, at *1-2 (Cal.Ct.App. Nov. 7, 2014), review denied (Jan. 14, 2015).

         II. Standards of Review Applicable to Habeas Corpus Claims

         An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

         Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:

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.

         For purposes of applying § 2254(d)(1), “clearly established federal law” consists of holdings of the United States Supreme Court at the time of the last reasoned state court decision. Thompson v. Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, 565 U.S. 34, (2011); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Circuit court precedent “may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably.” Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)). However, circuit precedent may not be “used to refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has not announced.” Marshall v. Rodgers, 133 S.Ct. 1446, 1450 (2013) (citing Parker v. Matthews, 132 S.Ct. 2148, 2155 (2012) (per curiam)). Nor may it be used to “determine whether a particular rule of law is so widely accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court, be accepted as correct. Id. Further, where courts of appeals have diverged in their treatment of an issue, it cannot be said that there is “clearly established Federal law” governing that issue. Carey v. Musladin, 549 U.S. 70, 77 (2006).

         A state court decision is “contrary to” clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634');">538 U.S. 634, 640 (2003). Under the “unreasonable application” clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case.[2] Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). In this regard, a federal habeas court “may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (it is “not enough that a federal habeas court, in its independent review of the legal question, is left with a ‘firm conviction' that the state court was ‘erroneous.'”). “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 v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

         Accordingly, “[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner 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 for fairminded disagreement.” Richter, 562 U.S. at 103.

         If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) (“[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.”).

         The court looks to the last reasoned state court decision as the basis for the state court judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). “When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Richter, 562 U.S. at 99. This presumption may be overcome by a showing “there is reason to think some other explanation for the state court's decision is more likely.” Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). Similarly, when a state court decision on a petitioner's claims rejects some claims but does not expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that the federal claim was adjudicated on the merits. Johnson v. Williams, 568 U.S. 289, 292 (2013).

         Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). “Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable.” Himes, 336 F.3d at 853. Where no reasoned decision is available, the habeas petitioner still has the burden of “showing there was no reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98.

         A summary denial is presumed to be a denial on the merits of the petitioner's claims. Stancle v. Clay, 692 F.3d 948, 957 & n. 3 (9th Cir. 2012). While the federal court cannot analyze just what the state court did when it issued a summary denial, the federal court must review the state court record to determine whether there was any “reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98. This court “must determine what arguments or theories ... could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court.” Id. at 102. The petitioner bears “the burden to demonstrate that ‘there was no reasonable basis for the state court to deny relief.'” Walker v. Martel, 709 F.3d 925, 939 (9th Cir. 2013) (quoting Richter, 562 U.S. at 98).

         When it is clear, however, that a state court has not reached the merits of a petitioner's claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 ...


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