Davalos v. Hatton

          ORDER OVERRULING OBJECTIONS TO REPORT AND RECOMMENDATION, AND ADOPTING REPORT AND RECOMMENDATION; AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

          Hon. Larry Alan, Burns United States District Judge

         Petitioner Sergio Davalos, a prisoner in state custody who is proceeding pro se, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. This matter was referred to Magistrate Judge Bernard Skomal for a report and recommendation. On March 2, Judge Skomal issued his report and recommendation (the “R&R”), and Davalos filed objections.

         Legal Standards

         A district court has jurisdiction to review a Magistrate Judge's report and recommendation on dispositive matters. Fed.R.Civ.P. 72(b). “The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Id. “A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). The Court reviews de novo those portions of the R&R to which specific written objection is made. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).

         Federal habeas review of state court judgments is highly deferential. Harrington v. Richter, 562 U.S. 86, 105 (2011); Cullen v. Pinholster, 563 U.S. 170, 181 (2011). As to claims adjudicated on the merits in state court, the Court can grant relief only if those proceedings resulted in a decision that was contrary to or involved an unreasonable application of clearly established federal law, as determined by the U.S. Supreme Court; or resulted in a decision based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. § 2254(d).

         Because the California Supreme Court denied Davalos' petition without comment, the Court “looks through” to the last reasoned decision to determine the likely basis for the higher court's denial of his claims. See Johnson v. Williams, 133 S.Ct. 1088, 1094 n.1 (2013).

         Procedural History

         Davalos was convicted in 2006 of second-degree murder, gross vehicular manslaughter while intoxicated, leaving the scene of an accident, driving under the influence of alcohol with a prior conviction for driving under the influence, and driving with a suspended license. He originally sought habeas relief in this Court in case 09cv2101-JM (POR), Davalos v. Yates, in which his claim was found procedurally defaulted.

         After the U.S. Supreme Court decided Johnson v. United States, 135 S.Ct. 2551 (2015), he filed another petition in state court, eventually exhausting his claims there and filing his petition here.

         Discussion of Objections

         Johnson dealt with the “residual clause” of the Armed Career Criminal Act, which provided that a felony that “involves conduct that presents a serious potential risk of physical injury to another” should be treated as a “violent felony.” The Court held that because the wide-ranging inquiry into whether a crime met this definition was too indeterminate to give fair notice to defendants or clear guidance to judges, the clause was unconstitutionally vague. 135 S.Ct. at 2557.

         The California Court of Appeals interpreted his petition as challenging the state's felony murder rule, which required that a predicate felony be “dangerous to human life.” (See Lodgment 12.) But Davalos was not convicted under a felony murder theory, and the Court of Appeals therefore found his vagueness challenge “entirely irrelevant to his conviction.” (Id.)

         The jury instructions in Davalos' criminal case asked the jury whether he caused the death of his victim with malice aforethought. (Id.) Neither the jurors nor the court evaluated any predicate felony for inherent dangerousness, or even considered any predicate felony. (Id.) Rather, jurors found he had committed vehicular homicide with implied malice. (Id.)

         If Davalos thought the Court of Appeals had misconstrued his claim, his later filings show no sign of it; he made the same claim in the California Supreme Court, and his petition in this Court show he is making the same argument. (See Docket no. 1 at 6 (petition, arguing that “second degree felony murder rule of California” is unconstitutionally ...