United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
is a California state prisoner who, proceeding with counsel,
brings an application for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. He was convicted in the Sacramento
County Superior Court of: (1) two counts of first degree
murder (Pen. Code § 187(a)); (2) first
degree burglary (§ 459); and (3) attempted robbery (with
firearm enhancements) (§ 664/211). The instant petition
raises five claims. First, petitioner argues that the trial
court committed prejudicial error when it excluded
exculpatory wiretap evidence. Second, petitioner argues that
the state court erred in excluding evidence as to a
victim's criminal background. Third, petitioner argues
that the trial court erred in denying his request for a jury
instruction on third-party culpability. With respect to this
(third) claim, petitioner also argues that his trial counsel
was ineffective for delaying the instruction request. Fourth,
petitioner argues that the trial court erred when it informed
the jury that a witness, Jermaine Hollie, refused to testify.
Fifth, he argues that cumulative error warrants issuance of
reasons stated below, the petition should be denied in its
Events of September 14, 2007
September 14, 2007 at approximately noon, a south Sacramento
drug dealer named Frederick Gill was discussing business with
a buyer. While Gill was doing business, Sean Aquitania called
and stated his intent to come to Gill's house with his
infant son. The two men were friendly and Aquitania wanted
Gill to see his baby before the latter turned himself in on a
petitioner and his associate - Christopher Strong - were
nearby and, having heard that Gill had several kilos of
cocaine, intended to rob him. Petitioner and Strong
approached Gill's house and found Aquitania sitting in
his car outside. The car door was open and petitioner
approached Aquitania. Petitioner intended to force Aquitania
to assist him in gaining access to Gill's house and, to
that end, struck him in the head with his gun. The gun
discharged and the bullet struck Aquitania's infant son
in the head.
and Strong removed Aquitania from his car and, together, they
approached Gill's house. Gill opened the front door and
was quickly subdued. Gill and Anthony Palmer - another man
who was staying with Gill at that time - were thrown to the
ground and zip tied by Strong. Strong demanded money from
Gill and Palmer while petitioner held Aquitania at gunpoint
by the door. Gill's buyer, who was in the back of the
house, managed to escape through a window.
asked petitioner and Strong to let him go tend to his son.
The robbers allowed him to go and told him they would deal
with him later. Aquitania returned after discovering the
gunshot wound to his infant son and, understandably enraged,
began attacking petitioner. Strong moved to aid petitioner
and, in the ensuing fight, Gill and Palmer managed to escape
the house. At some point during the fight, Aquitania tried to
take Strong's gun, prompting the latter to tell
petitioner to shoot. Petitioner fired twice and hit Aquitania
both times. One of the bullets went through Aquitania and hit
Strong in the leg. Strong and petitioner then fled.
having the zip ties removed by a neighbor, Gill returned to
his house and discovered Aquitania dead on the floor. Gill
placed various items related to his drug trade in a garbage
bag and told Palmer to take the bag before the police
arrived. He then went to Aquitania's car and discovered
the baby. Gill collected the child and ran while attempting
to apply pressure to the wound with his hand. He ultimately
flagged down a school bus. He gave the child to the driver
and returned to his house to await the authorities. The
infant was taken to a hospital but did not survive.
and Palmer could not identify the robbers. They described the
African-American robber (Strong) as over six feet tall and
stocky, with a hooded sweatshirt and a bandana or mask
concealing his face. They noted that Strong had brandished a
large chrome revolver. Gill stated that the Hispanic robber
(petitioner) was shorter and had a lighter frame. Gill
recalled that petitioner wore a white and green Oakland
A's hat and a white shirt. Palmer was in agreement with
Gill as to the A's hat but remembered petitioner as
having worn an A's jersey as well.
evidence indicated that each of the three bullets (one of
which hit the infant, two of which hit Aquitania) had been
fired by the same Glock. Investigators reached this
conclusion from three recovered cartridges and two recovered
bullets. Despite their best efforts, investigators could not
find the third bullet - leading them to conclude that one of
the robbers had also been shot.
December 18, 2007, a detective interviewed Sarah Roberts, who
lived across from petitioner. Roberts had contacted police
after seeing a circulated composite sketch which she believed
resembled a man she knew - Richard Noguera. Based on that
interview, investigators obtained a search warrant for
Roberts's phone records which indicated that, on the day
of the shooting, multiple calls had been made between Roberts
and a man named Noguera. ///// Noguera had lived with
petitioner at the latter's house in West Sacramento at
the time of the shootings. He sold marijuana and had two
cellphones - one for personal use and one for his drug deals.
Investigation continued and approximately two
years after the interview with Roberts, a
detective learned of a domestic violence incident between
Noguera and a woman named Kameka Grant. During the incident,
Noguera told Grant that he had committed the murder of
Aquitania and his son. Grant gave detectives several cell
numbers which belonged to Noguera and they obtained a search
warrant for his phone contacts.
on his admission to Grant, Noguera was arrested for the
murders. He told multiple lies and was not initially
forthcoming. He omitted, for instance, that he had gone to
the Bay Area on the day of the shooting and relayed that
information only when detectives informed him that his cell
records placed him there.
February 5, 2011, a detective interviewed petitioner, having
gleaned from previous investigation that he might be involved
in some way. The detective asked whether petitioner
associated with any individuals named “Chris” - a
name that Grant had referenced in her conversations with
police and whether he could provide a last name for such a
person. Petitioner denied being able to. Phone records
revealed, however, that after the interview petitioner dialed
October 5, 2011, detectives obtained a DNA sample from
petitioner. That sample profile matched fingernail scrapings
taken from Aquitania during the autopsy. Approximately a week
later, petitioner was arrested for the murders. Days later,
Noguera was also arrested for the murders. An arrest warrant
for Strong was obtained in January of 2012. The charges
against Noguera were ultimately dropped in March of 2012. He
was given immunity in exchange for his testimony.
phone records indicated that petitioner's phone had
dialed Noguera shortly after 1:00 p.m. on the day of the
shooting. Between 2:20 p.m. and 2:30 p.m., petitioner's
phone location was consistent with a vehicle travelling south
on Highway 99. It reached the Foster City/San Mateo area at
around 3:40 p.m. and stayed there until at least 6:15 p.m.
Noguera's phone was placed en route along the I-80
corridor by 4:39 p.m. It reached San Mateo by 6:11 p.m.
Noguera's phone returned to Sacramento by 9:28 p.m.
Petitioner's phone passed through Davis at 11:00 p.m. and
made a call from petitioner's house at 7:22 a.m. the next
testified that, on the day of the shootings, he was at
petitioner's house with a woman named Janey Hughes. He
heard pounding on the door and opened it to discover
petitioner supporting Strong, who had blood on his pants and
a limp. Petitioner was wearing the A's hat and shirt
described by Palmer and Strong was in a black hooded
sweatshirt. Noguera also saw that petitioner was in
possession of Aquitania's identification card.
took Hughes home and then returned to petitioner's house.
He drove Strong to a Bay Area apartment owned by Fred Wilson
(Strong's cousin). Petitioner and Wilson were already
there. Petitioner asked Noguera took to take apart a black
Glock handgun. Later that night, Noguera, petitioner, and
Strong drove back to Sacramento. After seeing news of the
shooting on television, petitioner and Strong admitted their
culpability to Noguera.
following day, Noguera cleaned blood off the interior of the
car used by petitioner and Strong during the attempted
robbery. The car was a rental used by Noguera and, three days
after washing it, he returned it in order to avoid suspicion.
second day after the shooting, a woman (whom Noguera could
not identify) came to petitioner's house with Jermaine
Holly - an individual known to petitioner and Strong. She
removed the bullet from Strong's leg.
testified the petitioner owned an A's cap like the one
described by Gill and Palmer. He also gave testimony related
to firearms - noting that petitioner owned a Glock and Strong
owned a long-barreled chrome revolver.
Sarah Roberts' Testimony
noted supra, Roberts lived across from
petitioner's house. She testified that Noguera had called
her several times on the day of the shootings. In one call he
informed her that “something bad” had happened,
that he needed to get rid of some Ecstasy pills, and that he
was in the Bay Area. In another call (or possibly the same -
Roberts could not recall at the time of trial) he told her
that “Chris” had been shot in the leg. Later that
evening, Noguera came to Roberts' house and told her to
turn on the news. The news covered the shooting of Aquitania
and his son. Upon seeing the story, Roberts recalled that
Noguera “got kinda weird” and left abruptly.
dated Noguera from August to December of 2007. She
corroborated Noguera's testimony about being at
petitioner's house on the day of the shooting. Hughes
remembered petitioner and Strong returning, the latter with a
blood stain on his pants and a limp. Noguera took Hughes back
to her home shortly thereafter.
saw Strong again later that year during a Halloween party at
petitioner's house. He was on crutches and she overheard
him say “I got shot” when asked what had happened
to his leg.
stated that she began dating Noguera in October of 2007 (she
was uncertain as to the exact month, offering a qualifying
“maybe”) and that she lived with him until the
end of 2009. She testified that, at some point in the fall of
2007, she accompanied Noguera and Strong on a car trip from
Sacramento to the Bay Area. Grant stated that Strong had an
injured leg and limped as he exited the vehicle. Grant asked
the men about the injury and they evasively offered jokes
instead of serious answers.
noted supra, a domestic incident occurred between
Grant and Noguera in December of 2009. She testified that
Noguera hit her in the head with a gun and threatened to kill
her. Argument ensued and Noguera, who was inebriated, began
relating his nightmares about a baby he had shot. He began to
cry and told Grant that, in haunting dreams, he heard the
baby screaming. Noguera said that neither the baby nor its
father were supposed to have been there; that he was forced
to kill the father because he had shot the baby. He mentioned
that “Chris” and “Don” (petitioner)
had been involved in the incident and that the former had
gotten hurt. Noguera made the wild claim that he had murdered
no less than twenty-seven people. Eventually he passed out.
Grant called the police and they took Noguera into custody
Burch was a licensed vocational nurse and was, at one point,
married to Jermaine Hollie aka “Hollywood.” She
testified that, at some point in 2007, Hollie asked her to
help a friend with a hurt leg. Burch agreed to help and
Hollie drove her to a house in Natomas, near a freeway. At
the house, she saw an African-American man, approximately
twenty-five or thirty years old, with his knee propped on a
couch. Burch also remembered a Latino man seated nearby.
remembered the African-American man's knee wound as being
circular and roughly the size of a nickel. She cleaned it,
inserted some gauze, and bandaged it. Burch did not remove
the bullet, but told the man that he should see a doctor.
Petitioner and Strong's Girlfriends
Mejia became acquainted with Strong in June of 2007. She
travelled to petitioner's house to see Strong on various
occasions after that date. Mejia stated that petitioner and
Strong “always hung out together” and
“considered each other brothers.” Strong missed
Mejia's birthday in Modesto in September of 2007. When
she asked him about it, he claimed to have injured his knee
playing basketball. When next she was with him, she noticed
that he was limping, and he showed her a knee injury that
looked like a bullet wound.
Ting dated Strong for three to four months in 2007. Strong
introduced petitioner to Ting as his brother. She recalled
watching petitioner and Strong pass firearms around at house
parties. On one occasion, Strong informed Ting that he
couldn't see her because he had been shot at a party by a
Ignacio began dating petitioner in 2003. Like Mejia, she
testified that petitioner and Strong had a close, brotherly
relationship. She recalled seeing petitioner in possession of
an “L-shaped” handgun on several occasions. In
2010, petitioner told Ignacio that detectives had come to his
grandmother's house and asked questions about Noguera and
Strong. He stated that, in the event the detectives returned,
he might be “gone.”
trial, petitioner called Frank Dearwester - who was then
serving a 32-year prison sentence and claimed to have had
conversations with Noguera while the two were housed next to
each other in jail. Dearwester claimed that Noguera told him
that, in order to create an alibi for the robbery, he
instructed his “baby mama” to dial his phone
during the time he and an accomplice committed the crime.
Dearwester also claimed that Noguera had told him that
between five and seven members of the Norteno gang were
involved in the crime. Dearwester never received a deal in
exchange for his testimony but acknowledged that his reason
for coming forward was a desire for such consideration in his
also introduced expert forensic analysis indicating that the
DNA matching his profile found under Aquitania's finger
nails could be the result of “secondary
transfer.” This raised the possibility, petitioner
argued, that his DNA could have been transferred to Noguera
who, in turn, could have transferred the DNA to Aquitania
when he committed the shootings.
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 in issue is clearly established by Supreme
Court precedent.” Marshall v. Rodgers, 569
U.S. 58, 64 (2013).
“Contrary To” Or “Unreasonable
Application Of” Clearly Established Federal Law
2254(d)(1) applies to state court adjudications based on
purely legal rulings and mixed questions of law and fact.
Davis v. Woodford, 384 F.3d 628, 637 (9th Cir.
2003). The two clauses of § 2254(d)(1) create two
distinct exceptions to AEDPA's limitation on relief.
Williams, 529 U.S. at 404-05 (the “contrary
to” and “unreasonable application” clauses
of (d)(1) ...