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 Tulare County
Superior Court of conspiracy to commit willful, deliberate,
and premeditated murder pursuant to Pen. Code §§
182(a)(1), 187. The instant habeas petition raises five
claims, specifically: (1) the jury violated his rights by
returning inconsistent verdicts; (2) the jury's
inconsistent verdicts indicate that it was confused in its
deliberations; (3) the trial court erred in failing to reject
the verdict based on its inconsistency and evidence of juror
confusion; (4) his trial counsel was ineffective in failing
to advise him to accept favorable plea deals; and (5) his
trial counsel was ineffective in failing to raise an
objection after the jury returned its inconsistent verdict.
For the reasons stated below, it is recommended that the
petition be denied.
27, 2012, Carlos Perez and his friend, Alejandro Lara, were
driving around South Lake Tahoe. The pair spotted Jaheem
Barton and Jamal Coffer at a Safeway grocery store. A prior
altercation between Barton and one of Perez's cousins had
resulted in bad blood between the two men. Matters between
them were further aggravated by Perez's belief that
Barton had given information to law enforcement which led to
the former's conviction for burglary in 2010. Barton saw
Perez and Lara drive by and gave a signal with his hands
which appeared to challenge them to a fight. Perez decided
against fighting Barton at that time, however, because the
latter was with his girlfriend and child.
spotting Barton, Perez assembled others in preparation for a
fight. He met and enlisted his cousins, Oscar and Efrain
Villagomez. Perez also called petitioner and asked if he
would help. Petitioner agreed to do so, and Perez picked him
group drove around searching for Barton and, ultimately found
him walking down a street with a group of people. Perez told
petitioner that they should get a weapon and the latter
agreed. Perez had been planning to buy petitioner's
handgun and, consequently, the weapon was at Perez's
house. Perez retrieved the gun and petitioner loaded it.
Perez told petitioner, in reference to Barton, that he
“wanted to make the problem end.”
and petitioner drove back to the street where they had seen
Barton. Lara and the Villagomez brothers were in a separate
car directly behind them. Petitioner was in the forward
passenger seat and nearest Barton. Petitioner told Perez he
would shoot. As they drove closer and Barton's group
began to scatter, petitioner asked Perez whether he should
“hit someone or just scare them.” Perez told him
to “do whatever.” Petitioner filed several shots
at the fleeing group while Perez drove by.
the shooting, Perez sped away from the scene. Petitioner
ultimately got out of Perez's car and into the one driven
by Lara. Lara drove petitioner home and Perez disposed of the
handgun by throwing it into a garbage dumpster.
was arrested the following day. He initially claimed that he
had been alone and had not stopped because Barton was with a
large group. Later, he admitted involvement in the shooting,
but claimed that Barton had actually shot at him first. He
also told investigators that petitioner had been armed when
he first picked him up.
discarded his cell phone at some point after the shooting and
obtained a new one. The new phone was seized when he was
arrested. Recovered text messages sent approximately one
month after the shooting captured the following exchange:
Petitioner: “Did you see that car with
the nigger came off [sic], the one driving was one of the
black guys who was there when I shot at them.”
Petitioner's Girlfriend: “Really?
Do you think they recognized you?”
Petitioner: “IDK [I don't know].
That's why I told you to go inside. Fuck all that. Ha
testified that, on the day of the shooting, Perez had sent
him a text asking if he would “have his back” in
a fight. Perez told petitioner that Barton had challenged him
to fight; the latter testified that he understood this to
mean a fistfight. Perez picked petitioner up and, at some
point, petitioner noticed that Perez had a handgun on his
waistband. Petitioner testified that he urged Perez not to
use it. He also claimed that the two never stopped at
Perez's house, but only “passed by.”
Barton's group was spotted, Perez ordered petitioner to
shoot at them. Petitioner testified that he refused to do so.
Perez then threatened harm to petitioner and his family if he
ever told anyone about what Perez was about to do. Petitioner
moved from the front passenger seat to the rear of the
vehicle. Perez shot at the group and drove away from the
scene. They returned to Perez's house and did not speak
of the shooting. Petitioner then went home.
also testified that he did not own the gun involved in the
shooting and had never seen it before that day. He
characterized the decision to dispose of his old cellphone as
a severing of ties with Perez, because it had been given to
him by the latter. Petitioner explained the texts to his
girlfriend by stating that Perez had told him to take the
blame for the shooting.
was charged with conspiracy to commit first degree murder
(Pen. Code, §§ 182, subd. (a)(1); 187, subd. (a))
and attempted first degree murder (§§ 664; 187,
subd. (a)). He was also charged with using a firearm in
connection with the foregoing counts (§§ 12022.53,
subd. (b) & 12022.5, subd. (a)). Finally, it was alleged
that petitioner had sustained a prior “strike”
jury found petitioner guilty of the conspiracy charge. It
found neither firearm enhancement to be true. The jury was
unable to reach a verdict on the attempted murder charge and
a mistrial was declared on that count.
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) must be given independent effect, and create two
categories of cases in which habeas relief remains
court decision is “contrary to” clearly
established federal law if the decision “contradicts
the governing law set forth in [the Supreme Court's]
cases.” Id. at 405. This includes use of the
wrong legal rule or analytical framework. “The
addition, deletion, or alteration of a factor in a test
established by the Supreme Court also constitutes a failure
to apply controlling Supreme Court law under the
‘contrary to' clause of the AEDPA.” Benn
v. Lambert, 283 F.3d 1040, 1051 n.5 (9th Cir. 2002).
See, e.g., Williams, 529 U.S. at 391, 39395
(Virginia Supreme Court's ineffective assistance of
counsel analysis “contrary to”
Strickland because it added a third prong
unauthorized by Strickland); Crittenden v.
Ayers, 624 F.3d 943, 954 (9th Cir. 2010) (California
Supreme Court's Batson analysis “contrary
to” federal law because it set a higher bar for a prima
facie case of discrimination than established in
Batson itself); Frantz, 533 F.3d at 734 35
(Arizona court's application of harmless error rule to
Faretta violation was contrary to U.S. Supreme
Court holding that such error is structural). A state court
also acts contrary to clearly established federal law when it
reaches a different result from a Supreme Court case despite
materially indistinguishable facts. Williams, 529
U.S. at 406, 41213; Ramdass v. Angelone, 530 U.S.
156, 16566 (2000) (plurality op'n).
court decision “unreasonably applies” federal law
“if the state court identifies the correct rule from
[the Supreme Court's] cases but unreasonably applies it
to the facts of the particular state prisoner's
case.” Williams, 529 U.S. at 407 08. It is not
enough that the state court was incorrect in the view of the
federal habeas court; the state court decision must be
objectively unreasonable. Wiggins v. Smith, 539 U.S.
510, 52021 (2003). This does not mean, however, that the
§ (d)(1) exception is limited to applications of federal
law that “reasonable jurists would all agree is
unreasonable.” Williams, 529 U.S. at 409
(rejecting Fourth Circuit's overly restrictive
interpretation of “unreasonable application”
clause). State court decisions can be objectively
unreasonable when they interpret Supreme Court precedent too
restrictively, when they fail to give appropriate
consideration and weight to the full body of available
evidence, and when they proceed on the basis of factual
error. See, e.g., Williams, 529 U.S. at 397-98;
Wiggins, 539 U.S. at 526 28 & 534; Rompilla
v. Beard, 545 U.S. 374, 388909 (2005); Porter v.
McCollum, 558 U.S. 30, 42 (2009).
“unreasonable application” clause permits habeas
relief based on the application of a governing principle to a
set of facts different from those of the case in which the
principle was announced. Lockyer, 538 U.S. at 76.
AEDPA does not require a nearly identical fact pattern before
a legal rule must be applied. Panetti v. Quarterman,
551 U.S. 930, 953 (2007). Even a general standard may be
applied in an unreasonable manner. Id. In such
cases, AEDPA deference does not apply to the federal
court's adjudication of the claim. Id. at 948.
under § 2254(d) is limited to the record that was before
the state court. Cullen v. Pinholster, 131 S.Ct.
1388, 1398 (2011). The question at this stage is whether the
state court reasonably applied clearly established federal
law to the facts before it. Id. In other words, the
focus of the § 2254(d) inquiry is “on what a state
court knew and did.” Id. at 1399.
the state court's adjudication is set forth in a reasoned
opinion, § 2254(d)(1) review is confined to “the
state court's actual reasoning” and “actual
analysis.” Frantz, 533 F.3d at 738 (emphasis
in original). A different rule applies where the state court
rejects claims summarily, without a reasoned opinion. In
Harrington, supra, the Supreme Court held
that when a state court denies a claim on the merits but
without a reasoned opinion, the federal habeas court must
determine what arguments or theories may have supported the
state court's decision, and subject those arguments or
theories to § 2254(d) scrutiny. Harrington, 562
U.S. at 101-102.
“Unreasonable Determination Of The
is also available under AEDPA where the state court
predicated its adjudication of a claim on an unreasonable
factual determination. Section 2254(d)(2). The statute
explicitly limits this inquiry to the evidence that was
before the state court.
factual determinations that are generally accorded heightened
deference, such as credibility findings, are subject to
scrutiny for objective reasonableness under §
2254(d)(2). For example, in Miller El v. Dretke, 545
U.S. 231 (2005), the Supreme Court ordered habeas relief
where the Texas court had based its denial of a
Batson claim on a factual finding that the
prosecutor's asserted race neutral reasons for striking
African American jurors were true. Miller El, 545
U.S. at 240.
unreasonable determination of facts exists where, among other
circumstances, the state court made its findings according to
a flawed process - for example, under an incorrect legal
standard, or where necessary findings were not made at all,
or where the state court failed to consider and weigh
relevant evidence that was properly presented to it. See
Taylor v. Maddox, 366 F.3d 992, 9991001 (9th Cir.),
cert. denied, 543 U.S. 1038 (2004). Moreover, if “a
state court makes evidentiary findings without holding a
hearing and giving petitioner an opportunity to present
evidence, such findings clearly result in a
‘unreasonable determination' of the facts”
within the meaning of § 2254(d)(2). Id. at
1001; accord Nunes v. Mueller, 350 F.3d 1045, 1055
(9th Cir. 2003) (state court's factual findings must be
deemed unreasonable under section 2254(d)(2) because
“state court . . . refused Nunes an evidentiary
hearing” and findings consequently “were made
without . . . a hearing”), cert. denied, 543