United States District Court, E.D. California
FINDINGS AND RECOMMENDATION RECOMMENDING DENIAL OF
PETITION FOR WRIT OF HABEAS CORPUS ORDER DIRECTING CLERK OF
COURT TO AMEND CAPTION
is a state prisoner proceeding pro se with a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
was convicted after a jury trial in the Kern County Superior
Court of battery resulting in serious bodily injury. The
trial court found to be true the allegation that Petitioner
served five prior prison terms, and Petitioner was sentenced
to an imprisonment term of six years. People v.
Maldonado, No. F070557, 2017 WL 945109, at *1
(Cal.Ct.App. Mar. 10, 2017). On March 10, 2017, the
California Court of Appeal, Fifth Appellate District affirmed
the judgment. Id. at *5. The California Supreme
Court denied Petitioner's petition for review on June 21,
2017. (LDs 7, 8).
September 15, 2017, Petitioner filed the instant federal
petition for writ of habeas corpus. (ECF No. 1). Therein,
Petitioner raises the following claims for relief: (1)
erroneous admission of witness dissuasion evidence, in
violation of due process; and (2) ineffective assistance of
counsel. Respondent has filed an answer. (ECF No. 9).
STATEMENT OF FACTS
12, 2014, Ignacio and Constance Tapia hosted a party at their home
in Bakersfield. Defendant, Ignacio's nephew, arrived at
around 5:00 p.m. Constance “didn't care for him to
be there” and both she and Ignacio asked him to leave.
Defendant left the premises after he greeted his siblings but
came back sometime before 6:00 p.m. Again, Ignacio and
Constance asked him to leave. Defendant departed 15 to 20
minutes later but returned by 8:00 p.m. Constance notified
Ignacio and Ignacio asked defendant to leave for a third
time. In response, defendant sat inside Ignacio's Ford
Expedition, which was parked on the driveway. Ignacio
implored, “Please leave, Santos. You are not welcome
here at this time.” Defendant inquired, “Why does
everybody have to party and I can't?” Ignacio
replied, “Because of your history.” Defendant
exited the vehicle and sat in a swing in the yard. Ignacio
asked him once more to leave the party. Defendant left but
came back at around 9:30 p.m. By then, an estimated 20 to 25
guests were in attendance, most of whom congregated outside.
Defendant “grabbed a beer from a female's hand and
started drinking it.” Constance shouted, “I told
you not to come over no more[!]” Ignacio and other
guests tried to convince defendant to leave, but to no avail.
around 10:30 p.m., defendant's cousin Christopher Acosta
arrived. He and defendant talked while standing on opposite
sides of the property's chain-link fence: Acosta faced
the house and defendant faced the street. Acosta said,
“Santos, what's wrong? We are family. I love you.
... [¶] ... [¶] ... We are family. Primo, we are
family.” He then tried to hug defendant over the fence.
After the second or third attempt, defendant punched Acosta
in the face and retrieved a black ceramic coffee mug from a
dining table in the yard. The guests were upset with
defendant for striking Acosta and told defendant to leave. In
addition, Acosta entered the yard and remarked,
“Santos, we are family. We are cousins. Why are you
doing this? Why did you hit me for?” The guests,
including Acosta, did not hold any objects, let alone
weapons. Ignacio instructed the crowd, “Give him room
to leave. Move away from him. Give him a path to the ...
front gate. [¶] ... [¶] ... Give him room. Let ...
Santos leave.” Although the guests complied, defendant
“back-pedal[ed]” and entered a shed at the rear
of the property. Acosta followed him. Before he could
“tell [defendant] again that [they] are family, ”
Acosta was struck with either a “glass, ”
“bottle, ” or “cup.” He ended up
“pulling out big-old pieces of glass out of [his]
face.” Ignacio saw defendant next to the fence and
urged him to flee. Defendant “jumped over the fence and
ran.” Sheriff's deputies arrived at the residence
after midnight. They interviewed Ignacio as well as Acosta.
Acosta appeared “kind of dazed” and his face was
“covered in blood.” The deputies observed black
ceramic shards and fresh bloodstains near the shed.
Anita Rubio, a neighbor, was hosting her own party. She went
outside and spotted defendant, who “looked like he was
hiding.” Rubio asked him what he was doing. Defendant
“put a finger up in front [of] his mouth” and
muttered, “Shhh.” Rubio saw the deputies nearby
and shouted, “He is right here [!]” Defendant
tried to escape but was apprehended. At the time of his
arrest, he was holding a bandana in one hand, which was
was subsequently transported to San Joaquin Community
Hospital, where he was examined by Dr. Jason Manuell, an
emergency department physician. Acosta sustained lacerations
on the bridge of the nose and around the left eye, which were
sutured by Manuell. Acosta's eye remained bruised and
swollen for about four weeks. At trial, Manuell opined
Acosta's injuries were “consistent with being
struck with an object.”
Maldonado, 2017 WL 945109, at *1-2 (footnotes in
STANDARD OF REVIEW
by way of a petition for writ of habeas corpus extends to a
person in custody pursuant to the judgment of a state court
if the custody is in violation of the Constitution or laws or
treaties of the United States. 28 U.S.C. § 2254(a); 28
U.S.C. § 2241(c)(3); Williams v. Taylor, 529
U.S. 362, 375 (2000). Petitioner asserts that he suffered
violations of his rights as guaranteed by the U.S.
Constitution. The challenged conviction arises out of the
Kern County Superior Court, which is located within the
Eastern District of California. 28 U.S.C. § 2241(d).
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 after its enactment. Lindh v. Murphy, 521 U.S.
320 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499
(9th Cir. 1997) (en banc). The instant petition was filed
after the enactment of AEDPA and is therefore governed by its
AEDPA, relitigation of any claim adjudicated on the merits in
state court is barred unless a petitioner can show that the
state court's adjudication of his 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.
28 U.S.C. § 2254(d); Harrington v. Richter, 562
U.S. 86, 97-98 (2011); Lockyer v. Andrade, 538 U.S.
63, 70-71 (2003); Williams, 529 U.S. at 413.
threshold matter, this Court must “first decide what
constitutes ‘clearly established Federal law, as
determined by the Supreme Court of the United
States.'” Lockyer, 538 U.S. at 71 (quoting
28 U.S.C. § 2254(d)(1)). In ascertaining what is
“clearly established Federal law, ” this Court
must look to the “holdings, as opposed to the dicta, of
[the Supreme Court's] decisions as of the time of the
relevant state-court decision.” Williams, 529
U.S. at 412. “In other words, ‘clearly
established Federal law' under § 2254(d)(1) is the
governing legal principle or principles set forth by the
Supreme Court at the time the state court renders its
decision.” Id. In addition, the Supreme Court
decision must “‘squarely address  the issue in
th[e] case' or establish a legal principle that
‘clearly extend[s]' to a new context to the extent
required by the Supreme Court in . . . recent
decisions”; otherwise, there is no clearly established
Federal law for purposes of review under AEDPA. Moses v.
Payne, 555 F.3d 742, 754 (9th Cir. 2009) (quoting
Wright v. Van Patten, 552 U.S. 120, 125 (2008));
Panetti v. Quarterman, 551 U.S. 930 (2007);
Carey v. Musladin, 549 U.S. 70 (2006). If no clearly
established Federal law exists, the inquiry is at an end and
the Court must defer to the state court's decision.
Musladin, 549 U.S. 70; Wright, 552 U.S. at
126; Moses, 555 F.3d at 760.
Court determines there is governing clearly established
Federal law, the Court must then consider whether the state
court's decision was “contrary to, or involved an
unreasonable application of, [the] clearly established
Federal law.” Lockyer, 538 U.S. at 72 (quoting
28 U.S.C. § 2254(d)(1)). “Under the
‘contrary to' clause, a federal habeas court may
grant the writ if the state court arrives at a conclusion
opposite to that reached by [the Supreme] Court on a question
of law or if the state court decides a case differently than
[the] Court has on a set of materially indistinguishable
facts.” Williams, 529 U.S. at 412-13; see
also Lockyer, 538 U.S. at 72. “The word
‘contrary' is commonly understood to mean
‘diametrically different, ' ‘opposite in
character or nature, ' or ‘mutually
opposed.'” Williams, 529 U.S. at 405
(quoting Webster's Third New International Dictionary 495
(1976)). “A state-court decision will certainly be
contrary to [Supreme Court] clearly established precedent if
the state court applies a rule that contradicts the governing
law set forth in [Supreme Court] cases.” Id.
If the state court decision is “contrary to”
clearly established Supreme Court precedent, the state
decision is reviewed under the pre-AEDPA de novo standard.
Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008)
the ‘reasonable application clause, ' a federal
habeas court may grant the writ if the state court identifies
the correct governing legal principle from [the] Court's
decisions but unreasonably applies that principle to the
facts of the prisoner's case.” Williams,
529 U.S. at 413. “[A] federal 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.
Rather, that application must also be unreasonable.”
Id. at 411; see also Lockyer, 538 U.S. at
75-76. The writ may issue only “where there is no
possibility fair minded jurists could disagree that the state
court's decision conflicts with [the Supreme Court's]
precedents.” Richter, 562 U.S. at 102. In
other words, so long as fair minded jurists could disagree on
the correctness of the state court's decision, the
decision cannot be considered unreasonable. Id. If
the Court determines that the state court decision is
objectively unreasonable, and the error is not structural,
habeas relief is nonetheless unavailable unless the error had
a substantial and injurious effect on the verdict. Brecht
v. Abrahamson, 507 U.S. 619, 637 (1993).
court looks to the last reasoned state court decision as the
basis for the state court judgment. Stanley v.
Cullen, 633 F.3d 852, 859 (9th Cir. 2011); 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 99-100 (citing Ylst v.
Nunnemaker, 501 U.S. 797, 803 (1991)).
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. 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.
REVIEW OF CLAIMS
Admission of Witness Dissuasion Evidence
first claim for relief, Petitioner asserts that the trial
court violated his due process rights when it admitted
Ignacio Tapia's testimony regarding Petitioner's
mother's attempt to dissuade Ignacio from testifying.
(ECF No. 1 at 16-22). Respondent argues that the state
court's rejection of this claim was not an unreasonable
application of Supreme Court precedent. (ECF No. 9 at 15-18).
raised this claim on direct appeal to the California Court of
Appeal, Fifth Appellate District, which denied the claim in a
reasoned decision. The California Supreme Court summarily
denied Petitioner's petition for review. As federal
courts review the last reasoned state court opinion, the
Court will “look through” the California Supreme
Court's summary denial and examine the decision of the
California Court of Appeal. See Brumfield v. Cain,
135 S.Ct. 2269, 2276 (2015); Johnson v. Williams,
568 U.S. 289, 297 n.1 (2013); Ylst, 501 U.S. at 806.
denying relief with respect to Petitioner's challenge to
the admission of Ignacio Tapia's testimony regarding
dissuasion, the California Court of Appeal stated:
I. The trial court's admission of evidence that
defendant's mother attempted to dissuade Ignacio from
testifying did not constitute prejudicial error.
On October 15, 2014, Ignacio was sworn as a prosecution
witness outside the jury's presence. The trial court
remarked, “Mr. Tapia, it's been represented to me
through the prosecutor that ... you are going to plead the
Fifth, something to that effect.” When asked whether he
would do so, Ignacio answered, “No.” The
prosecutor then conducted a voir dire examination:
“Q Mr. Tapia, do you recall speaking with me this
morning via telephone?
“Q Do you recall telling me that, quote, unquote, they
are telling you ...