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Perry v. Fox

United States District Court, E.D. California

July 24, 2019

JACK PERRY, Petitioner,
ROBERT FOX, Respondent.



         Petitioner is a California state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On October 31, 2014, petitioner was convicted of elder abuse and assault with a stun gun. The jury also found true the allegation that petitioner had inflicted great bodily injury on a person over the age of seventy. He now raises a single ground for relief in his petition: that the admission of expert testimony by the prosecution violated his federal due process rights. For the reasons stated hereafter, the petition should be denied.


         The victim - seventy-six-year-old Elias Carranco - worked as a parking attendant at a Stockton parking lot. The parking lot was situated near an apartment complex which petitioner frequented. On June 24, 2014, Carranco made ready to leave the parking lot in his vehicle. Carranco's exit was blocked, however, because petitioner was standing near the parking lot exit with his bicycle. Carranco asked petitioner to move, but he would not comply. Petitioner claimed that, after the two reached an impasse, Carranco used his vehicle to forcibly edge petitioner's bicycle forward. Petitioner's leg was pushed beneath the front bumper of the vehicle and the bicycle was toppled. Petitioner picked up the bicycle, screamed at Carranco, and moved to throw the bicycle at the vehicle. Carranco responded by driving forward and striking the bicycle, which caused the handlebar to strike petitioner in the face. Petitioner then walked to the driver's side of the vehicle and punched Carranco. Carranco drove a short distance away and called police to report the incident. Police took a report, but no one was arrested that day.

         The following day, petitioner was seen with a taser moving from the apartment complex toward the parking lot where Carranco worked. Shortly thereafter, he was seen returning to the apartments. Minutes after petitioner's return to the apartments, Carranco was discovered on the ground, eyes closed, in a pool of blood. He would eventually open his eyes, but proved incoherent and unable to explain what had befallen him. Carranco was taken to a hospital and treated for a ruptured ear drum, a fractured skull, and a brain bleed.

         At trial, the prosecution presented testimony from expert witness Ed Obayashi - the lead instructor for the Internal Affairs Investigation Course at Alameda Regional Training Center. Part of his course at the training center centered on Taser use of force, including: (1) analysis of video evidence involving Taser discharge; (2) the characteristic effects of Taser use on a victim's physiology; and (3) the falling patterns of Taser victims. Obayashi showed jurors an example video of a man having a Taser used against him. He pointed out how the victim's body went stiff and rendered incapable of doing anything other than falling. Obayashi explained that only a Taser would cause an individual to fall helplessly backwards without any attempt to break the fall.

         Next and in the presence of the jury, Obayashi reviewed a surveillance video of the June 25, 2014 incident. He pointed out similarities between the victim's fall and the example video. Obayashi offered his opinion that the victim was most likely attacked with a Taser. Obayashi had no information - other than a hospital report which he reviewed for physical evidence of Taser use - as to the identity of the victim or suspect, nor did he have any other background information about the incident.


         I. Applicable Statutory Provisions

         28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), provides in relevant part as follows:

(d) 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.

Section 2254(d) constitutes a “constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus.” (Terry) Williams v. Taylor, 529 U.S. 362, 412 (2000). It does not, however, “imply abandonment or abdication of judicial review, ” or “by definition preclude relief.” Miller El v. Cockrell, 537 U.S. 322, 340 (2003). If either prong (d)(1) or (d)(2) is satisfied, the federal court may grant relief based on a de novo finding of constitutional error. See Frantz v. Hazey, 533 F.3d 724, 736 (9th Cir. 2008) (en banc).

         The statute applies whenever the state court has denied a federal claim on its merits, whether or not the state court explained its reasons. Harrington v. Richter, 131 S.Ct. 770, 785 (2011). State court rejection of a federal claim will be presumed to have been on the merits absent any indication or state law procedural principles to the contrary. Id. at 784-785 (citing Harris v. Reed, 489 U.S. 255, 265 (1989) (presumption of a merits determination when it is unclear whether a decision appearing to rest on federal grounds was decided on another basis)). “The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely.” Id. at 785.

         A. “Clearly ...

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