Arzate v. Holland

DAVID ARZATE, Petitioner,

v.KIM HOLLAND, Warden, Respondent.

1:09-cv-02156 MJS HC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dated: October 31, 2012

ORDER DENYING PETITION FOR WRIT

OF HABEAS CORPUS AND DECLINING

TO ISSUE CERTIFICATE OF

APPEALABILITY

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent, Kim Holland, as warden of California Correctional Institution, Tehachapi, is hereby substituted as the proper named respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. Respondent is represented in this action by Kathleen Anne McKenna, Esq., of the Office of the Attorney General for the State of California. The parties have consented to Magistrate Judge jurisdiction under 28 U.S.C. § 636(c). (ECF Nos. 3, 8.)

I. PROCEDURAL BACKGROUND

Petitioner is currently a state prisoner pursuant to a judgment of the Superior Court ofCalifornia, County of Stanislaus, following his conviction by jury trial on March 28, 2007, for attempted murder, assault with a firearm, participation in a street gang, and unlawful possession of a firearm. (CT¹ , Vol. 1 at 249-50.) On June 4, 2007, the trial court sentenced Petitioner to serve forty-five (45) years to life plus fourteen years in state prison. (Id.)

Petitioner filed a direct appeal which was denied in a reasoned decision by the California Court of Appeal, Fifth Appellate District on April 2, 2009. (Lodged Doc. 5.) While the conviction was affirmed, the appellate court corrected the sentence to twenty five (25) years to life plus six years. (Id.) The California Supreme Court denied review on July 15, 2009. (Lodged Doc. 9.) Petitioner did not seek post-conviction collateral relief in state court.

Petitioner filed the instant federal habeas petition on December 11, 2009. (Pet., ECF No. 1.) Petitioner raises the following seven claims for relief:

1.) That there was insufficient evidence to convict Petitioner of active participation in a criminal street gang;

2.) The trial court improperly denied his objections to gang expert testimony;

3.) That the trial court improperly allowed prejudicial and inflammatory evidence linking Petitioner to a planned 2004 killing and an attempt to shoot an expert witness;

4.) That the trial court erred in admitting evidence connecting the Norteno street gang to the Mexican Mafia prison gang;

5.) The trial court failed to give a limiting instruction regarding gang evidence, and Petitioner's counsel was ineffective for failing to request the instruction;

6.) The trial court improperly denied his claim of jury misconduct; and

7.) The trial court improperly denied his motion for substitution of new trial counsel.

Respondent filed an answer to the petition on August 2, 2010, and Petitioner filed a traverse on August 19, 2010. (Answer & Traverse, ECF Nos. 9, 11.)

II. FACTUAL BACKGROUND²

Kari Moncibaiz and her estranged husband, Joel Moncibaiz, were arguing in the parking lot of their mutual place of employment. FN2 Defendant, who was dating Kari and by whom Kari was then pregnant, happened to call Kari on her cellular telephone while the argument was in progress. Joel took the telephone and exchanged taunts and heated words with defendant. After the call, Kari drove away.

FN 2 To avoid confusion, at times we will refer to Kari and Joel Moncibaiz by their given names.

A short time later, Kari returned to the parking lot, followed by defendant and two other men in a separate car. Defendant came out of the car, and he and Joel immediately began fighting. During a lull in the action, Kari approached defendant, lifted his shirt, and took a handgun from defendant's waistband. She returned to her car and defendant and Joel resumed their fight.

Joel, a much larger man than defendant, was getting the better of defendant in the fight. Defendant broke off the fight and went to Kari's car, entering on the passenger side. He and Kari struggled over the gun, then Kari threw the gun out the window. Defendant got out of the car and recovered the gun.

Defendant pointed the gun at Joel, who was then 20 to 25 feet from him. Defendant began firing. Joel turned and ran in a zig-zag motion until he fell down, unharmed. In all, defendant fired about seven times.

Joel stood up again and began yelling. Kari left in her car, and defendant and the other two men left in their car.

People v. Arzate, 2009 Cal. App. Unpub. LEXIS 2667, *2-*3 (2009).

III. DISCUSSION

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 or 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 fn.7 (2000). Petitioner's claims involve those guaranteed by the U.S. Constitution and arise from the Kings County Superior Court of California, which is located within the jurisdiction of this court. 28 U.S.C. § 2241(d); 2254(a). Accordingly, the Court has jurisdiction over the action.

B. Legal Standard of Review

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, 326 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997). The instant petition was filed after the enactment of the AEDPA; thus, it is governed by its provisions.

Under AEDPA, an application for a writ of habeas corpus by a person in custody under a judgment of a state court may be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. at 375 n. 7 (2000). Federal habeas corpus relief is available for any claim decided on the merits in state court proceedings if the state court's 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.

28 U.S.C. § 2254(d).

1. Contrary to or an Unreasonable Application of Federal Law

A state court decision is "contrary to" federal law if it "applies a rule that contradicts governing law set forth in [Supreme Court] cases" or "confronts a set of facts that are materially indistinguishable from" a Supreme Court case, yet reaches a different result." Brown v. Payton, 544 U.S. 133, 141 (2005) (citing Williams, 529 U.S. at 405 06). "AEDPA does not require state and federal courts to wait for some nearly identical factual pattern before a legal rule must be applied. . . . The statue recognizes . . . that even a general standard may be applied in an unreasonable manner." Panetti v. Quarterman, 551 U.S. 930, 953 (2007) (citations and quotation marks omitted). The "clearly established Federal law" requirement "does not demand more than a 'principle' or 'general standard.'" Musladin v. Lamarque, 555 F.3d 830, 839 (2009). For a state decision to be an unreasonable application of clearly established federal law under § 2254(d)(1), the Supreme Court's prior decisionsmust provide a governing legal principle (or principles) to the issue before the state court. Lockyer v. Andrade, 538 U.S. 63, 70 71 (2003). A state court decision will involve an "unreasonable application of "federal law only if it is "objectively unreasonable." Id. at 75-76 (quoting Williams, 529 U.S. at 409 10); Woodford v. Visciotti, 537 U.S. 19, 24 25 (2002). In Harrington v. Richter, the Court further stresses that "an unreasonable application of federal law is different from an incorrect application of federal law." 131 S. Ct. 770, 785 (2011) (citing Williams, 529 U.S. at 410) (emphasis in original). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Id. at 786 (citing Yarborough v. Alvarado, 541 U.S. 653, 664 (2004)). Further, "[t]he more general the rule, the more leeway courts have in reading outcomes in case by case determinations." Id.; Renico v. Lett, 130 S. Ct. 1855, 1864 (2010). "It is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by this Court." Knowles v. Mirzayance, 556 U.S. 111, 122, 129 S. Ct. 1411, 1419 (2009) (quoting Richter, 131 S. Ct. at 786).

2. Review of State Decisions

"Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the claim rest on the same grounds." See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). This is referred to as the "look through" presumption. Id. at 804; Plascencia v. Alameida, 467 F.3d 1190, 1198 (9th Cir. 2006). Determining whether a state court's decision resulted from an unreasonable legal or factual conclusion, "does not require that there be an opinion from the state court explaining the state court's reasoning." Richter, 131 S. Ct. at 784 85. "Where a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief." Id. ("This Court now holds and reconfirms that § 2254(d) does not require a state court to give reasons before its decision can be deemed to have been 'adjudicated on the merits.'").

Richter instructs that whether the state court decision is reasoned and explained, ormerely a summary denial, the approach to evaluating unreasonableness under § 2254(d) is the same: "Under § 2254(d), a habeas court must determine what arguments or theories supported or, as here, could have supported, the state court's decision; then it...