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Sutter v. Gastelo

United States District Court, E.D. California

January 13, 2020

J. GASTELO, Warden, Respondent.



         Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is currently serving a life sentence for his conviction of attempted murder with a firearm. He has filed the instant habeas action challenging the conviction. As discussed below, the Court finds the claims to be without merit and recommends the petition be DENIED.


         On December 18, 2017, in Fresno County Superior Court, a jury found Petitioner guilty of first degree attempted murder (Cal. Penal Code §§ 664/187(a)), possession of a firearm by a felon (Cal. Penal Code § 29800(a)(1)), and attendant enhancements (Cal. Penal Code §§ 12022.53(d); 12022.5(a); 12022.7(a)). People v. Sutter, 2019 WL 1091755, at *1 (Cal.Ct.App. 2019). On January 18, 2018, Petitioner was sentenced to an indeterminate term of 25 years to life followed by one consecutive indeterminate term of life with the possibility of parole. (Doc. 17-12 at 27.[1])

         Petitioner appealed to the California Court of Appeal, Fifth Appellate District (“Fifth DCA”). Counsel for Petitioner notified the appellate court that there were no arguable issues pursuant to People v. Wende, 25 Cal.3d 436 (1979), thereby invoking a procedure requiring the appellate court to determine if arguable issues existed. Sutter, 2019 WL 1091755, * 1. Petitioner then filed a first and second supplemental brief identifying certain issues. Id. On March 8, 2019, the Fifth DCA affirmed the judgment in a reasoned decision. Id. Petitioner then filed a petition for review in the California Supreme Court. (Doc. 17-5.) The petition was denied on June 12, 2019. (Doc. 17-6.)

         On August 12, 2019, Petitioner filed the instant petition for writ of habeas corpus in this Court. (Doc. 1.) On December 3, 2019, Respondent filed an answer to the petition. (Doc. 16.) Petitioner has not filed a traverse.


         The Court adopts the Statement of Facts in the Fifth DCA's unpublished decision[2]:

Around June 2016, Francisco Martinez's mother allowed Sutter, whom Martinez had known for at least two years, to move into a house she owned on Mayfair Drive in Fresno. Although Sutter was supposed to keep other people out of the house and maintain it, he “thrashed” it and he allowed people to come and go all the time. Sometime after December 2016, Martinez began telling Sutter he had to move, but Sutter did not move.
On the evening of August 14, 2017, Martinez received a text from Sutter stating that he wanted to get some boxes and he wanted Martinez to go to the Mayfair Drive house. Martinez, however, did not go to the house until the next morning at approximately 7:00 a.m. Martinez knocked on the door, but nobody answered. He then went to the window of the room where Sutter stayed and knocked on the window. Eventually someone inside told Martinez to go to the front of the house. Martinez went to the front door and pulled on it, but it did not open. The door then opened, and Sutter pointed the barrel of a homemade shotgun at Martinez's face and ordered him to shut up, get in the house, and sit down. [Fn.2] Martinez turned around and was about to step off the porch when he heard a gunshot that struck him on the back and he fell to the ground. Sutter came out of the house with his father and he began saying Martinez had threatened his family, that he should stomp Martinez, and that it was a good thing he did not kill him. Although Martinez's legs were paralyzed he managed to turn himself over and he pleaded with Sutter not to kill him. However, at that point, Sutter no longer had the shotgun. When Martinez stated, “God, don't let me die, ” Sutter told him there was no God and that after he let Martinez bleed to death, Sutter was going to kill Martinez's mother if she did not sign the house over to him. Despite his injuries, Martinez was able to call 911 on his cell phone.
[Fn.2] Approximately a month earlier, Martinez had gone to the house and told Sutter he had to move and if he did not, Martinez was going to get the police involved. Sutter got upset and “pulled” a gun on Martinez.
Diana Perez heard the gunshot and called 911. She also saw a bald man walk into the yard and look at something on the ground that was not visible to her because her vision was partially obstructed, and a second man carry away a black backpack.
Fresno County Sheriff's Deputy Manuel Chavez responded to the scene at approximately 7:15 a.m. As Chavez and two other deputies approached the house, he saw Martinez lying on the ground and Sutter start running away from the deputies. Sutter complied with the deputies' commands to get on the ground and they handcuffed him.
During a warrant search of the house on Mayfair Drive, the deputies found a black backpack in a refrigerator. The backpack contained a homemade shotgun that was made from two metal tubes and that contained an expended shotgun shell in one end and a live round in the shotgun's vertical grip. Three to four additional live shotgun rounds were found in a nylon bag that was inside the backpack.
The shotgun blast severed Martinez's spinal cord, leaving him paralyzed from the chest down. He also suffered internal bleeding in his chest cavity and into one of his lungs.

Sutter, 2019 WL 1091755, at *1-2.


         A. Jurisdiction

         Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n. 7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the United States Constitution. The challenged conviction arises out of the Fresno County Superior Court, which is located within the jurisdiction of this court. 28 U.S.C. § 2254(a); 28 U.S.C.§ 2241(d).

         On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320 (1997) (holding the AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.

         B. Legal Standard of Review

         A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless the petitioner can show that the state court's adjudication of his claim resulted in a decision that: (1) 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) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 U.S. at 412-413.

         A state court decision is “contrary to” clearly established federal law “if it applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases, or “if it confronts a set of facts that is materially indistinguishable from a [Supreme Court] decision but reaches a different result.” Brown v. Payton, 544 U.S. 133, 141 (2005) (citing Williams, 529 U.S. at 405-406).

         In Harrington v. Richter, 562 U.S. 86, 101 (2011), the U.S. Supreme Court explained that an “unreasonable application” of federal law is an objective test that turns on “whether it is possible that fairminded jurists could disagree” that the state court decision meets the standards set forth in the AEDPA. The Supreme Court has “said time and again that ‘an unreasonable application of federal law is different from an incorrect application of federal law.'” Cullen v. Pinholster, 563 U.S. 170, 203 (2011). Thus, a state prisoner seeking a writ of habeas corpus from a federal court “must show that the state court's ruling on the claim being presented in federal court was ...

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