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Ortez-Lucero v. Hatton

United States District Court, E.D. California

November 5, 2019

DONALD ORTEZ-LUCERO, Petitioner,
v.
SHAWN HATTON, Respondent.

          FINDINGS AND RECOMMENDATIONS

          EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE

         Petitioner 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[1] (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 the writ.

         For the reasons stated below, the petition should be denied in its entirety.

         FACTUAL BACKGROUND

         The Events of September 14, 2007

         On 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 jail commitment.

         Unfortunately, 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.

         Petitioner 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.

         Aquitania 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.

         After 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.

         Investigation

         Gill 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.

         Ballistic 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.

         On 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[2] 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.

         Based 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.

         On 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 Christopher Strong.

         On 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.

         Cell 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 morning.

         Prosecution Testimony

         A. Noguera's Testimony

         Noguera 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.

         Noguera 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.

         The 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.

         The 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.

         Noguera 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.

         B. Sarah Roberts' Testimony

         As 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.

         C. Janey Hughes

         Hughes 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.

         Hughes 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.

         D. Kameka Grant

         Grant 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.

         As 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 that night.

         E. Lashaun Burch

         Ms. 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.

         Burch 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.

         F. Petitioner and Strong's Girlfriends

         Alma 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.

         Azaria 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 friend.

         Catherine 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.”

         Petitioner's Defense

         At 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 own case.

         Petitioner 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.

         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 in issue is clearly established by Supreme Court precedent.” Marshall v. Rodgers, 569 U.S. 58, 64 (2013).

         B. “Contrary To” Or “Unreasonable Application Of” Clearly Established Federal Law

         Section 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) ...


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