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Duenas v. Perry

United States District Court, E.D. California

November 20, 2017

S. PERRY, Respondent.



         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 February 21, 2012 in the San Joaquin County Superior Court on charges of first degree murder (Pen. Code § 187), shooting into an occupied vehicle (Pen. Code § 246), and unlawful possession of a firearm as a minor (Pen. Code § 12101(a)(1)). He seeks federal habeas relief on the following grounds: (1) his due process rights were violated when he was convicted of first degree murder without sufficient evidence of premeditation and deliberation; (2) the trial court violated his due process rights by declining his counsel's request to instruct the jury on the lesser included offense of voluntary manslaughter based on provocation; (3) the trial court violated his due process rights by instructing the jury on consciousness of guilt by way of concealing evidence (CALCRIM No. 371), over his counsel's objections; and (4) his sentence of fifty years to life constitutes cruel and unusual punishment in contravention of the Eighth Amendment because it effectively amounts to a life sentence without the possibility of parole. 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         In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the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 factual summary:

A jury found defendant Noah Eugene Duenas guilty of the first degree murder of Jose Lua, and found that defendant personally and intentionally discharged a firearm, causing Lua's death. (Pen.Code, §§ 187, 12022.53, subd. (d).)1 The jury also found defendant guilty of shooting from an occupied vehicle and unlawfully possessing a firearm as a minor. (§§ 246, 12101, subd. (a)(1).) The trial court sentenced defendant to 50 years to life in prison, and defendant timely filed this appeal.
On appeal, defendant first contends insufficient evidence supports the jury's findings of premeditation and deliberation. He further claims the trial court erred in failing to instruct the jury on provocation, as well as in instructing on concealing evidence. He argues his sentence is unconstitutional, and identifies an error in the abstract of judgment. As we will explain, we agree with only the last point. We will affirm but direct the trial court to prepare a corrected abstract of judgment.
People's Case Defendant shot the victim, Jose “Boo” Lua, in the head on the evening of March 18, 2010, as he was speaking with Lua, who sat belted in the passenger seat of a parked car at a liquor store. One witness testified he saw Lua roll the window down of the car as defendant approached and then he saw defendant speaking amicably to Lua for about five minutes, with no indication of anger, yelling, or swearing. The conversation ended abruptly when defendant shot Lua once, and then “took off like a banshee” on a push scooter. Lua's girlfriend, who was with him that night but was in the store during the shooting, had never seen Lua with a weapon. After the shooting, she left the store, saw Lua bleeding and tried to help him, and then, according to other witnesses, started screaming for help.
A trained EMT happened upon the scene. He saw a distraught woman being held by two people, saw Lua, radioed for help because he did not have his medical kit with him, cut Lua free from his seat belt and tried to keep his airway open until help could arrive. During this period, no one else approached the car. The EMT saw no gun.
A deputy sheriff on patrol heard the shot and screaming and arrived at the scene just as a radio dispatch went out. He found Lua had a pulse, radioed for medical help, and kept everyone away from the car until help arrived. He saw no gun, nor did another officer who accompanied Lua to the hospital and took charge of his clothing and effects. Two other officers searched the entire car and found an expended .32-caliber cartridge casing near the right front passenger seat, but found no weapons. They did find two mobile telephones and a baggie of what appeared to be prescription pills.
A .32-caliber bullet had entered Lua's right cheek, and the gun muzzle was between one foot and two feet away from the skin when it was fired. The gun was to the right and forward of the head, because the bullet traveled down and back and Lua may have been bent over when he was shot. Lua was not under the influence of alcohol or drugs.
Defendant fled the scene but was found in October 2010 in jail in Alameda County, where he had been booked under a false name.
Defendant's Case Defendant testified he shot Lua in self-defense. He had known Lua as a friend in the past, but had lost contact with him, and had no “beefs” or fights with him and no reason for defendant to shoot Lua, nor was there any reason for Lua to shoot defendant. Defendant had been in trouble at school for non-gang graffiti and throwing a pizza at someone, which is why he had gone to an alternative school. He had been in some fights when he was younger, 11 or 12 years old, and had served some time in juvenile hall and had been put on probation for the graffiti. He was a week shy of 18 at the time of the killing. Defendant denied he was a gang member, but testified had been shot at during a party in October 2009 and bought the gun in December 2009 and began carrying it loaded-where he could easily access it-because he was scared, although he sometimes hid it under a porch. It was in his waistband while he was at the store.
As defendant passed by the car, Lua called out to him. After they spoke in a friendly manner, Lua “confronted” defendant about an incident that “involved my aunt's house being broken into.” Specifically, Lua said “ ‘What's this shit I hear about your aunt accusing me of breaking into her house?' ” Defendant replied that he did not know. He knew his aunt's house had been broken into a couple of years before, but did not know who had done it. Lua replied, “ ‘Fuck that. Fuck that nasty bitch' ” and “ ‘that bitch don't know what she's talking about.' ” He added, “ ‘Fuck her and fuck you.' ” Defendant could have walked away, but chose to stay. Then Lua said: “ ‘What? What? You want some of this?' ” Lua began to reach or bend down, and based on Lua's “whole demeanor, how he was looking at me, his tone of voice, I mean everything, ” defendant testified he “thought [Lua] was going for like a gun or something. So I grabbed my pistol and I had shot and I ran away.” “I just reacted. I didn't aim.” He knew he had shot Lua, but he did not turn himself in because he was scared. When he was arrested in Oakland he gave a false name-actually, two different false names-“to buy some time” because he had already been working with an aunt to get an attorney so he could surrender. He left the gun in Stockton because he was scared, but he could not remember where. When questioned in jail about the killing, he denied being at the store because he wanted to talk to his attorney first, although he spoke to the officer after waiving his rights.
One of defendant's former teachers testified she thought “he was calm, peaceful, non-violent, a leader” and someone she could rely on. On cross-examination, she testified her opinion would not change if she heard he had attacked students or engaged in fights several times in 2004 and 2005. Defendant's great-aunt testified he lived with her from 1998 to 2007 (defendant described her as a “mother figure”), and in her opinion he was “not violent. He's very peaceful.” On cross-examination, she testified she had not learned of incidents of school violence involving defendant in 2004 and 2005, but, as his caregiver, the school would have contacted her in the event of any issues.

People v. Duenas, No. C070823, 2014 WL 2111212, at *1-2 (Cal.Ct.App. May 21, 2014), review denied (July 30, 2014).

         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, 569 U.S. 58, 64 (2013) (citing Parker v. Matthews, 567 U.S. 37, 49 (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.[1] 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 F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).

         III. Petitioner's Claims A. Sufficiency of the Evidence

          In his first ground for habeas relief, petitioner argues that his first degree murder conviction was not supported by sufficient evidence of premeditation and deliberation. ECF No. 1 at 5, 32-33.[2] The California Court of Appeal rejected this argument and ...

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