United States District Court, S.D. California
SERGIO J. DAVALOS, Plaintiff,
S. HATTON, Warden, Defendant.
ORDER OVERRULING OBJECTIONS TO REPORT AND
RECOMMENDATION, AND ADOPTING REPORT AND RECOMMENDATION; AND
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Larry Alan, Burns United States District Judge
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
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
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. §
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).
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
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.
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.
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.”
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
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