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Torres v. Ducart

United States District Court, E.D. California

September 4, 2019

DUCART, Respondent.


          Kendall J. Newman, Judge

         I. Introduction

         Petitioner is a state prisoner, proceeding without counsel, with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his June 2011 convictions for carjacking, kidnapping, street terrorism, two counts of second degree robbery, and attempted second degree robbery. Petitioner was sentenced to fifteen years-to-life, plus forty years and eight months in state prison. Petitioner claims that (1) the trial court abused its discretion in denying a mistrial, (2) trial counsel was ineffective for failing to present expert eyewitness identification testimony, (3) trial counsel was ineffective for failing to conduct a pretrial investigation, and (4) the prosecutor committed constitutional error by referencing petitioner's facial tattoos in closing argument. After careful review of the record, this court concludes that the petition should be denied.

         II. Procedural History

         On April 29, 2011, a jury found petitioner guilty of the following crimes: carjacking (Cal. Pen. Code, § 215(a)) with personal use of a firearm (Cal. Pen. Code, § 12022.53(b)&(e)) and commission for the benefit of a criminal street gang (Cal. Pen. Code, § 186.22(b)(1)) as special findings; kidnaping to commit robbery (Cal. Pen. Code, § 209(b)) with the same special findings; active participation in a criminal street gang/street terrorism (Cal. Pen. Code, § 186.22(a)); two counts of robbery (Cal. Pen. Code, § 211) each with personal use of a firearm (Cal. Pen. Code, § 12022.53(b)&(e)) and commission for the benefit of a criminal street gang (Cal. Pen. Code, § 186.22(b)(1)) as special findings; attempted robbery (Cal. Pen. Code, §§664/211) also with personal use of a firearm (Cal. Pen. Code, § 12022.53(b)&(e)) and commission for the benefit of a criminal street gang (Cal. Pen. Code, § 186.22(b)(1)) as special findings; possession of a firearm by a felon (Cal. Pen. Code, § 12021(a)); vandalism (Cal. Pen. Code, § 594(a)); escape from arrest (Cal. Pen. Code, § 836.6(b)); and resisting a police officer (Cal. Pen. Code, § 148). (LD 4 at 155-175; LD 11 at 1178-83.)[1] On June 13, 2011, petitioner was sentenced to an indeterminate term of fifteen years-to-life plus a determinate term of forty years and eight months in state prison. (LD 5 at 344-47; LD 16 at 1276-89.)

         Petitioner appealed the conviction to the California Court of Appeal, Third Appellate District. (LD 19 & 22.) The Court of Appeal modified petitioner's sentence by striking and staying the term imposed on two of the numerous counts, and otherwise affirmed the conviction on December 3, 2014. (LD 23 & ECF No. 24 at 27-37 [Ex. A].)

         Petitioner filed a petition for review in the California Supreme Court (LD 25), which was denied on January 12, 2015. (LD 26.)

         Thereafter, petitioner filed a petition for writ of habeas corpus in San Joaquin County Superior Court on April 18, 2016. (LD 27.) That same day, petitioner filed the instant petition with this court. (ECF No. 1.) On July 19, 2016, the San Joaquin County Superior Court denied the habeas petition. (LD 28.)

         On July 25, 2016, petitioner filed a motion for stay in the instant action. (ECF No. 8.) This court denied petitioner's motion without prejudice on September 9, 2016. (ECF No. 9.)

         In the interim, on August 25, 2016, petitioner filed a state habeas petition with the California Court of Appeal for the Third Appellate District. (LD 29.) That court denied the petition on September 30, 2016. (LD 30.)

         On October 19, 2016, the undersigned ordered petitioner to file an amended petition asserting only exhausted claims. (ECF No. 10.)

         On November 21, 2016, petitioner simultaneously filed another motion to stay in this court (ECF No. 11), as well as a petition for writ of habeas corpus in the California Supreme Court (LD 31). The state's highest court denied the petition on January 11, 2017. (LD 32.)

         Thereafter, on March 3, 2017, the undersigned denied petitioner's motion to stay as moot in light of the California Supreme Court's denial. Respondent was then ordered to file an answer to petitioner's original petition. (ECF No. 12.) Respondent filed an answer on June 28, 2017. (ECF No. 24.)

         III. Facts[2]

         In its unpublished memorandum and opinion modifying petitioner's sentence and affirming the judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:

On the night of December 11, 2008, Marco Serrano and his girlfriend, Yesenia Andrade, were seated in Serrano's car in a Stockton parking lot. Serrano was in the driver's seat and Andrade was in the front passenger seat. Their friend, Sergio Morales, was in the backseat. They were waiting to meet up with Serrano's friend Jesse P.
A Hispanic man knocked on the driver's window to ask for a light. The man was wearing a dark hooded sweatshirt with the hood up, and a “rag” (a handkerchief or bandana) partly covering his tattooed face. When Serrano lowered the window, the masked man brandished a gun and forced his way into the seat behind the driver.
A second man, who had been standing behind the gunman, entered the front passenger seat, forcing Andrade into the back.
Moments later, when Serrano's friend Jesse walked up to the car, the gunman confronted him. Jesse testified that the gunman, who had a “red rag” over his nose and mouth, took $20 from the pocket of Jesse's sweatshirt before sending him away. Jesse returned to his brother's car and they called police.
Meanwhile, the gunman told Serrano to drive and demanded that Morales and Andrade turn over their money; they had none.
Police officers, responding to a dispatch, stopped the car a few minutes later. The officers saw two men run from the vehicle; one escaped, but officers chased and apprehended the other, eventually identifying him as Raymond. Raymond was wearing a bandana around his neck and had Serrano's cell phone in his pocket.
Several days later, a detective met with Andrade and Serrano. Andrade reported that the suspect who escaped had facial tattoos. The detective showed her a photographic lineup of approximately 60 local men with facial tattoos. Andrade identified Vincent as the gunman; his cheeks were emblazoned with large numerals “1” and “4.” Variants of the number 14 represent the letter “N” for “Norteño.” An expert testified that, in the local community, a majority of people would have recognized the symbol on Vincent's face and understood its “intimidation factor.” Morales told a detective the suspect had “14” on his face and identified Vincent from a photographic display.
Vincent was arrested at the courthouse a month later, while attending a hearing for Raymond. He tried to escape, breaking a window with a chair, but he was restrained during a struggle with police officers. At trial, he admitted being a gang member, admitted that gang members get respect by committing crimes, and also admitted that he was a “runner, ” someone who jumped off roofs, out of windows and away from cars to avoid police. In addition, he admitted “d[oing] time” for fighting, stealing cars and other crimes, but he denied any role in the crimes for which he was charged, saying carjacking was “out of [his] league.” Raymond and Vincent were tried together for the charged offenses. At trial, Morales positively identified both defendants. Raymond said he was involved in the crimes only because another armed gang member forced him to participate. Andrade, crying, said she was frightened and did not want to testify. She denied her earlier identifications but admitted that she told police the truth when the facts were fresh in her mind. Jesse also denied an identification he made on the night of the crime, insisting he saw only a red rag covering most of a face while a gun touched his head.

(People v. Torres, et al., slip op. at 3-4.)

         IV. Standards for a Writ of Habeas Corpus

         An 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, 5 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

         Title 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; 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.

28 U.S.C. § 2254(d).

         For 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, 44-45 (2011)); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 412 (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).

         A state 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). Under 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.[3] Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams v. Taylor, 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 v. Taylor, 529 U.S. at 411. 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 fair-minded disagreement.” Richter, 562 U.S. at 103.

         If the 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”).

         The 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 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, 568 U.S. 289, (2013) (citing Richter, 562 U.S. at 98). If a state court fails to adjudicate a component of the petitioner's federal claim, the component is reviewed de novo in federal court. Wiggins v. Smith, 539 U.S. 510, 534 (2003).

         Where 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.

         A 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 101. 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).

         When it 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).

         V. Petitioner's Claims

         A. Petitioner's Sixth and Fourteenth Amendment Rights to Due Process & Fair Trial

         Petitioner claims that the trial court's refusal to grant his motion for mistrial when the jury deadlocked during deliberation violated petitioner's constitutional rights pursuant to the Sixth and Fourteenth Amendments to the United States Constitution. (ECF No. 1 at 4, 21-33.) Respondent contends the state court's rejection of petitioner's claim was reasonable and precludes federal habeas relief. (ECF No. 24 at 11-15.)

         The last reasoned rejection of petitioner's first claim is the decision of the California Court of Appeal for the Third Appellate District on petitioner's direct appeal. The state court addressed this claim as follows:

Vincent further contends the trial court erred in the handling of a deadlocked jury. He claims the trial court deprived him of a fair trial and due process by directing the jury to continue deliberations under circumstances he describes as “coercive.”
Deliberations commenced on April 22, 2011. At noon on April 27, jurors sent a note to the trial court saying, “We have 6 jurors who cannot place Vincent at the crime [scene] beyond a shadow of a doubt. We have worked on this for about 6 hours and cannot move forward. [¶] We have agreed on all counts regarding Raymond.”
An hour and a half later, apparently following a lunch break, they sent another note saying, “In regards to Vincent-if we cannot determine beyond a shadow of a doubt his presence in counts 1, 2, 4, 5 & 6-can we then rule on his participation in a street gang as set forth in count 3?” The trial court promptly responded by telling jurors they appeared not to be applying the correct burden of proof and that “[p]roof beyond a shadow of a doubt is not the correct burden of proof.” The trial court directed jurors to the correct page in their jury instruction packets and read to them the instructions on the burden of proof.
The following afternoon, on April 28, the jury wrote to the judge saying, “We are unable to reach a unanimous decision on several counts....” The trial court called the jurors into the courtroom and told them it would confer with counsel and then ask them questions the next morning, when defendants and counsel could be present.
On the morning of April 29, the trial court inquired of the jurors in writing, “Are you yet unable to reach a unanimous decision on several counts? Have you reached verdicts on other counts?” The foreperson wrote back on the same page, “We cannot agree that 1 suspect was there. One juror is holding out.”
After bringing the jurors back into the courtroom, the trial court asked whether further deliberation, instruction from the trial court or the reading of testimony could assist the jurors on the remaining counts. The foreperson said no, but when the jurors were polled, the sixth juror responded, “Instruction from the Court.” At that point, the trial court sent the jurors back to the deliberation room, directing them to “set out in writing what area you believe further instruction could be of assistance.” The jurors did not identify an area for further instruction but instead reached a verdict. It found Vincent guilty on all counts.
When there is a jury impasse, a trial court “must at least consider how it can best aid the jury.” (People v. Beardslee (1991) 53 Cal.3d 68, 97, italics omitted.) The trial court “should ask the jury if it has specific concerns which, if resolved, might assist the jury in reaching a verdict, ” and it may thereafter give additional instructions, clarify previous instructions and/or permit additional closing argument. (Cal. Rules of Court, rule 2.1036.)
A jury may be discharged if “it satisfactorily appears that there is no reasonable probability that the jury can agree.” (Pen.Code, § 1140.) Determining whether there is a reasonable probability of agreement rests within the sound discretion of the trial court. (People v. Harris (2005) 37 Cal.4th 310, 363.) The trial court may direct further deliberations to enhance the jury's understanding of the case but not as a means of pressuring it to reach a verdict on issues it already has discussed and considered. (Id. at p. 364.)
A defendant's right to a fair trial may be violated if a trial judge's inquiry into jury balloting is “likely to coerce certain jurors into relinquishing their views in favor of reaching a unanimous decision.” (Locks v. Sumner (1983) 703 F.2d 403, 406.) The issue of coercion must be viewed in context. (Ibid.) In other words, a trial court must not displace a jury's independent judgment in favor of “‘compromise and expediency.”' (People v. Sheldon (1989) 48 Cal.3d 935, 959.) When a trial court knows there is “a single holdout juror favoring acquittal, ” remarks about the clarity of the evidence, the ...

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