United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT
OF HABEAS CORPUS [THIRTY DAY OBJECTION DEADLINE]
K. OBERTO UNITED STATES MAGISTRATE JUDGE.
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.
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.)
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.
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.
Court adopts the Statement of Facts in the Fifth DCA's
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
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.
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
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.
Legal Standard of Review
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.
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).
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 ...