United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
F. BRENNAN, UNITED STATES MAGISTRATE JUDGE
is a California state prisoner who, represented by counsel,
brings an application for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. He was convicted in the San Joaquin
County Superior Court of two counts of carjacking (Pen. Code,
§ 215, subd. (a)), two counts of second degree robbery
(§ 211); and one count of dissuading a witness (§
136.1, subd. (b)(1)). ECF No. 12-8 at 8. Firearms
enhancements pursuant to §§ 12022.5(a)(1) and
12022.53(b) were applied to each count. ECF No. 12-8 at 8.
The immediate habeas petition raises the following claims:
(1) he is entitled to resentencing with respect to his
firearm enhancements under California Senate Bill 620; and
(2) that the state court violated the prohibition against
double jeopardy when it imposed a consecutive - rather than
concurrent - sentence for the second carjacking conviction
reasons stated below, the court recommends that this petition
be denied in its entirety.
August of 2011, Robert Older and Shane Jauregui were
travelling by car from southern California to Sacramento.
They had audio and video equipment worth approximately 50,
000 dollars which they were selling on commission and out of
the back of their vehicle. The two men stopped in Stockton
and saw petitioner at a local gas station. Older approached
petitioner, and the two negotiated a deal in which the latter
agreed to buy some home theater equipment. Petitioner had
passengers in his car, however, and told Older that he would
need to take them home before fitting the items into his car.
Older agreed to proceed to a nearby shopping center parking
lot where they would complete the transaction after the
latter drove his passengers home.
and Jauregui waited in the market parking lot for a short
time. Petitioner returned with two other men. Older conferred
with petitioner at the back of the vehicle while Jauregui
moved into the driver's seat of the car. After a short
time, petitioner beckoned to the two men that accompanied
him, put Older in a headlock, and placed a firearm against
Older's neck. Petitioner then ordered Jauregui out of the
car. One of petitioner's companions opened the car door
and pulled Jauregui out.
took Older and Jauregui's wallets and other pocket items.
Petitioner's companions jumped into the victims'
vehicle and drove off with all of the equipment. Petitioner
left in his own car, but not before warning Older not to call
the police or he would find and kill him.
security guard and a supermarket employee witnessed the
events and, after petitioner and his companions had left,
loaned a cell phone to the victims. Older and Jauregui called
their boss and then the police to report the robbery. The
victims described petitioner to Garret Schumacher - the
investigating officer. Schumacher was familiar with
petitioner and, based on the description, had a hunch that he
was involved. He took the victims to the police station and
created a six-pack photo line-up that he presented to each
victim separately. Both selected photographs of petitioner.
following day, Older and Jauregui, now accompanied by their
boss, located their stolen vehicle near the shopping market
where they had been robbed. It had been emptied of the audio
and visual equipment.
GOVERNING HABEAS RELIEF UNDER THE AEDPA
Applicable Statutory Provisions
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;
(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.
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).
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, 562 U.S. 86,
99-100 (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.
“Clearly Established Federal Law”
phrase “clearly established Federal law” in
§ 2254(d)(1) refers to the “governing legal
principle or principles” previously articulated by the
Supreme Court. Lockyer v. Andrade, 538 U.S. 63, 7172
(2003). Only Supreme Court precedent may constitute
“clearly established Federal law, ” but courts
may look to circuit law “to ascertain
whether…the particular point ...