United States District Court, E.D. California
ORDER & FINDINGS & RECOMMENDATIONS
KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE.
is a state prisoner, proceeding through counsel, with a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. Petitioner challenges his 2012 conviction for
attempted murder (Cal. Penal Code §§ 664/187(a)),
discharge of a firearm from a motor vehicle (Cal. Penal Code
§ 12034(c)), and committing these offenses for the
benefit of a criminal street gang (Cal. Penal Code §
186.22(b)(1), (f)). Petitioner is serving a sentence of
thirty-two years to life.
raises two claims: 1) insufficient evidence to support his
attempted murder conviction; and 2) insufficient evidence to
support his conviction for discharge of a firearm from a
motor vehicle. After carefully considering the record, the
undersigned recommends that the petition be denied.
Standards for a Writ of Habeas Corpus
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, 4 (2010); Estelle v. McGuire, 502 U.S.
62, 67-68 (1991).
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;
(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).
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,
132 S.Ct. 38 (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,
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).
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). “[R]eview under 28 U.S.C.
§ 2254(d)(1) is limited to the record that was before
the state court that adjudicated the claim on the
merits.” Cullen v. Pinholster, 563 U.S. 170,
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.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 102.
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.”).
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
99-100 (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, 133
S.Ct. 1088, 1091 (2013).
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.
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).
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).
instant action, the California Court of Appeal is the last
state court to issue a reasoned decision addressing
petitioner's claims. (See Respondent's
Lodged Documents 6, 8.) Accordingly, pursuant to 28 U.S.C.
§ 2244(d), the undersigned gives deference to the
opinion of the California Court of Appeal.
opinion of the California Court of Appeal contains a factual
summary. After independently reviewing the record, the
undersigned finds this summary to be accurate and adopts it
On the morning of April 3, 2010, Juan Alvarado, a member of
the Norteño gang, started walking from his
girlfriend's house on Taft Street to his father's
home on Berggren Street, about five blocks away. As Alvarado
turned onto Berggren Street, a car drove up, stopped, and
Alvarado was shot by the man in the front passenger seat.
Alvarado was hit once in the abdomen, sustaining
life-threatening injuries. Defendant was the driver. The
passengers were: Gerardo Villasenor, Narciso Guzman, and
Roberto Padilla. The occupants of the car were members of the
At trial, Alvarado testified he was walking with his head
down “half asleep” when he heard a screeching
sound, as if someone driving a car was slamming on the
brakes. He then heard a gunshot, looked up, and saw heads in
the car. Alvarado was walking north, while the car traveled
south on Taft Street. The car took off after he was shot.
Alvarado initially denied knowing who shot him, but later
identified Villasenor (codefendant) as the shooter. [Footnote
3] Codefendant was about 25 feet from Alvarado when he was
shot. [Footnote 4.] Alvarado attended sixth and seventh
grades with codefendant, and knew codefendant's brother.
As a Norteño, he was not supposed to snitch against
others, even members of a rival gang like the Sureños.
[Footnote 3: Villasenor is not a party to this appeal.]
[Footnote 4: Before Alvarado admitted codefendant shot him,
he testified the car was 40 feet away when he was shot.]
A police officer responding to the incident found Alvarado in
the backyard of a nearby residence. Among the items worn by
Alvarado were a red belt with the letter “N” on
the buckle and black and red shoes. Alvarado said he was
walking outside when he was shot, and then jumped over a
fence and told the home's resident to call the police.
Alvarado identified the car as a late 1990's gold,
four-door Oldsmobile. He said there were five Hispanic guys
in the car, all members of the Sureño gang. Alvarado
would not further identify them, which was common in gang
Alvarado was later interviewed by police at the hospital. He
told the officer he was walking north on Taft Street at the
corner of Berggren Street, when a car traveling south on Taft
turned left on Berggren. Someone on the passenger side shot
him. The car was about 12 feet away from Alvarado when he was
shot. The car's occupants were from the Howe Park
Alvarado identified codefendant as the shooter in a
photographic lineup. Alvarado told the officer he thought he
went to middle school with codefendant, and had beaten up
codefendant's older brother and the boyfriend of
codefendant's sister when he was in the ninth grade.
In April 2010, Narciso Guzman lived with his parents in
Sacramento, having moved there from Orange County about 10
years earlier. He was friends with Sureño gang members
in Orange County, and joined the Sureños within a few
years of moving to Sacramento. He was a friend of
codefendant, whom he referred to by the nickname “Lalo,
” and knew defendant by the nickname “Charlie
Brown.” He admitted Howe Park Sureños often
On the day of the incident, Guzman was picked up in the Arden
area by defendant, who was driving an Oldsmobile Alero.
Guzman sat in the rear passenger seat, while defendant drove
and codefendant sat in the front passenger seat. Padilla sat
behind defendant. At 7:12 a.m., they stopped at a liquor
store at the intersection of Marysville Boulevard and Del
Paso Boulevard, where Guzman bought beer.
After buying beer, defendant drove to the “wrong side
of the neighborhood” instead of to Guzman's
neighborhood to drop Guzman off at his home. Codefendant
spotted a person he recognized, and defendant pulled over at
the intersection of Taft and Berggren Streets. The car was in
the center of the street at the intersection. Guzman could
not recall why defendant stopped the car, and did not
remember seeing the person wearing anything red. However, he
believed that after the ...