Fernandez v. W L Montgomery

182 F.Supp.3d 991

Rolando Fernandez, Plaintiff,

v.W L Montgomery, Respondent.

Case No. 13-cv-02296-HSG

United States District Court, N.D. California.

Signed April 19, 2016

Paul Gilruth McCarthy, Robert Joseph Beles, Law Offices of Beles & Beles, Oakland, CA, for Plaintiff.

Sharon R. Wooden, CA Attorney General's Office, San Francisco, CA, for Respondent.

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

Re: Dkt. No. 27

HAYWOOD S. GILLIAM, JR., United States District Judge

Before the Court is Petitioner Rolando Fernandez's ("Petitioner") second-amended petition for a writ of habeas corpus, filed under 28 U.S.C. § 2254, challenging the validity of a conviction obtained against him in state court. Dkt. No. 27 ("Pet."). Respondent W.L. Montgomery, Warden of California State Prison-Calipatria, ("Respondent") has filed an answer, Dkt. No. 28 ("Ans."), and Petitioner has filed a traverse, Dkt. No. 32 ("Trav."). The Court has carefully considered the briefs submitted by the parties. For the reasons set forth below, the petition is DENIED .

I. PROCEDURAL HISTORY

In 2007, a California jury found Petitioner guilty of two counts of second-degree murder, see Cal. Pen. Code § 187(a), with a sentencing enhancement for intentional discharge of a firearm causing death, id. § 12022.53(d). Pet. ¶ 1. The prosecution also sought to prove that Petitioner was previously convicted of murder, a finding which results in a mandatory penalty of death or life imprisonment without the possibility of parole, but the jury found that allegation untrue. Pet. ¶¶ 1, 4. Petitioner was sentenced to a term of 80 years to life, less time served. Id. ¶ 8.

Petitioner directly appealed the conviction in the California Court of Appeal, alleging several constitutional and state law errors. Id. ¶ 10. In a reasoned opinion, the California Court of Appeal affirmed. Id. The California Supreme Court summarily denied review. Id. ¶ 11.

The original petition in this case was filed in this Court on May 20, 2013. Dkt. No. 1. An answer was filed on March 20, 2014. Dkt. No. 5. Petitioner filed a traverse on June 20, 2014. Dkt. Nos. 14 & 15. On June 24, 2014, Petitioner filed a motion to stay the petition and hold it in abeyance to permit exhaustion of a claim he raised for the first time in his traverse. Dkt. No. 16. The Court issued an order requiring Petitioner to clarify the procedural mechanism by which he desired to proceed with respect to his new claim. Dkt. No. 17. Petitioner reaffirmed his choice and again moved to amend and stay the petition on August 20, 2014. Dkt. No. 20. The Court granted the motion and stayed the petition on September 24, 2014. After the state court appellate decision that formed the basis for the new claim was reversed, the Court dissolved the stay and reinstated proceedings on May 29, 2015, on motion from Petitioner. Dkt. Nos. 24, 26.

Petitioner filed the instant amended petition on June 4, 2015. Respondent filed an answer on July 6, 2015, and Petitioner filed a traverse on September 4, 2015.

II. STATEMENT OF FACTS

The following background facts describing the crime and evidence presented at trial are from the opinion of the California Court of Appeal.¹

Prosecution Case

Bartender Ana Lilia Cardenas saw her friend Ignacio "Chano" Mendes arrive at the Headquarters Bar a few minutes after 6:00 p.m. on Friday, April 14, 2006. Mendes was accompanied by another man wearing a gray hooded sweater who she had seen with Mendes five or six times. Defendant's cousin, Ruben Ramos, joined them, and defendant arrived later and also joined the group. The men were all from the same part of Mexico. As the evening wore on, Mendes and his friends became more intoxicated.

Angelica Cervantes was at the bar that evening with several friends, including Jesus Hernandez. The group drank and danced until a man in a gray hooded sweater tapped Hernandez on the shoulder and made a gesture for him to go outside to the patio. It did not seem to Cervantes like a friendly gesture, but she could not hear what they were saying. Cervantes had noticed a group of about five men at another table staring at them earlier. The man in the hooded sweater was one of them. He and Hernandez walked out onto the patio.

Juana Alvarez, Hernandez's girlfriend, was also at the bar that night. She also noticed a group of men staring at them. When Hernandez went outside with the man with the hooded sweater, she followed them to the patio. Alvarez saw the man in the hooded sweater try to provoke Hernandez into a fight. Hernandez appeared angry, but he did not fight the man. Hernandez got up and made a phone call. When he was done with the call, the man in the hooded sweater approached them and said, "I'm sorry, that's your girl, I didn't mean to disrespect." Hernandez and Alvarez returned to their table. Hernandez ordered a beer. As he was ordering, Humberto Calderon arrived at the bar with a group of other men. Cervantes thought there were 10 guys with him. Alvarez saw maybe three others with him. Calderon spoke with Hernandez and then they walked over to the man in the hooded sweater and signaled for him to come outside. They all went out to the patio. Alvarez saw a total of 10 or 15 men from both groups go out to the patio. A few minutes after they went out, Cervantes and Alvarez could hear gun fire.

Ramos and Mendes went outside together. Right after they stepped through the door, Ramos heard shooting. Ramos saw one shooter in each group. He did not see a gun in defendant's hand, but he saw the flame from a gun. Ramos did not recall telling the police he saw defendant with a gun shooting at a "cholo." When he turned to run inside, Ramos saw Mendes had been shot and was lying face down on the ground.

Ramon Arreola, whose uncle owned the Headquarters Bar, was also there that night. He knew Mendes and greeted him after he arrived. He had seen defendant in the bar before and recognized him. Arreola stopped a loud argument that developed outside the bathroom that night and afterward defendant came up to him and told him, "Don't worry, if there's trouble I got your back."

Arreola was outside on the patio when he heard gunshots. He tried to take cover behind a walk-in refrigerator on the patio. He saw defendant standing near the door to the bar shooting a handgun. Defendant was shooting in the direction of a locked gate door leading from the patio to a parking lot. Two people were standing there at the gate. He fired about 15 shots at the two people who were about eight feet from him. They were "raising their hands, trying to turn away, kind of jumping up and down in a slow motion." They appeared to be trapped in the corner by the gate and neither of them had a gun. Arreola did not see anyone else on the patio with a gun and no one was shooting at defendant. When the firing stopped, Arreola ran into the bar and through it to get to his car parked outside on the street.

Angel Jimenez was on the patio having a cigarette when two groups of people lined up on either side of him to fight. Jimenez knew a lot of the people in one of the groups as people from the neighborhood, including his friend Jesus Hernandez. One of the groups were "pisas," meaning fellow natives of Mexico. Jimenez thought there were about 10 people in each group. One of the pisas approached Hernandez and said he had been disrespected by one of Hernandez's friends. A fight broke out between Humberto Calderon and one of the pisas. When another pisa hit Calderon, everybody started fighting. Thirty or forty seconds later, Jimenez heard gunshots. Jimenez saw defendant in front of him shooting toward the fence. Defendant walked forward as he fired his gun and deliberately aimed at the gate. He did not try to duck or conceal himself as he was walking toward the gate and shooting. Defendant was the only person firing.

Jimenez ran into the ice machine closet for cover. The closet was the size of an average bathroom. He heard six or seven more gunshots as he hid, all coming from one gun. Jimenez saw defendant again when he stepped into the ice machine closet with a gun in his hand. He was two or three feet from Jimenez. Defendant looked at Jimenez and pointed the gun at him. Jimenez said to him in Spanish, "[W]ow, man, I didn't do nothing." At that point, defendant shuffled through his pockets, pulled out a clip of bullets, and reloaded his gun. He worked the action on the gun, held it up, and left the closet with his arm outstretched and his finger on the trigger. He fired two more rounds at the gate. The last two shots were fired with an appreciable pause in between.²

When the sound of gunfire stopped, Jimenez left the ice machine closet. He saw his friends, Jesus Hernandez and Humberto Calderon, on the ground by the gate. Hernandez was dead and Calderon was dying. Neither man had a gun or other weapon, and there was no sign either had ever been armed. As he exited through the bar, Jimenez noticed defendant holding the body of Mendes and calling his name. He was surprised to see defendant was still there after he had killed two people.

Hernandez and Calderon died from multiple gunshot wounds. Hernandez was shot three times, including a fatal shot to the back of the head. Hernandez had a blood alcohol level of .02 percent, the equivalent of one beer. No drugs were detected in his bloodstream. Calderon was 18 years old at the time of his death. He was shot five or six times in the neck, leg, and buttock. Calderon died from a combination of all of his injuries. His blood alcohol level was .07 percent or the equivalent of three and a half drinks.

Defense Case

Michael Bass and Domingo Naranjo were at birthday party for Calderon when Calderon got a call and told them they had to go to the Headquarters Bar to help Hernandez.³ After arriving at the bar, Bass followed people outside to the patio. A fight broke out and Bass joined in. Calderon was involved along with some other people Bass did not know. Almost immediately, Bass heard gunshots close by. Bass

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