Williams v. Neuschmid

          FINDINGS AND RECOMMENDATIONS

          EDMUND F. BRENNAN, UNITED STATES MAGISTRATE JUDGE

         Petitioner 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 (Count 2).

         For the reasons stated below, the court recommends that this petition be denied in its entirety.

         FACTUAL BACKGROUND

         In 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.

         Older 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.

         Petitioner 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.

         A 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.

         The 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.

         STANDARDS GOVERNING HABEAS RELIEF UNDER THE AEDPA

         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, 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.

         A. “Clearly Established Federal Law”

         The 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 ...