Hernandez v. McGrath

595 F.Supp.2d 1111

David HERNANDEZ, Petitioner, v. Joseph McGRATH, Respondent.

No. CIV S-04-0280-GEB-GGH-P.

United States District Court, E.D. California.

January 21, 2009.

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Matthew Dale Alger, Alger and Alger, Clovis, CA, for Petitioner.

Daniel B. Bernstein, Attorney General's Office for the State of California, Sacramento, CA, for Respondent.

ORDER

GARLAND E. BURRELL, JR., District Judge.

Petitioner, a state prisoner proceeding through counsel, has filed this application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262.

On November 20, 2008, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within twenty days. Petitioner and respondent have filed objections to the findings and recommendations.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis.

Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations filed November 20, 2008, are adopted in full; and

2. Petitioner's application for a writ of habeas corpus is granted in part on the Confrontation Clause issue. The case shall be sent back to state court for resentencing only on attempted murder without a finding of premeditation.

FINDINGS & RECOMMENDATIONS

GREGORY G. HOLLOWS, United States Magistrate Judge.

I. Introduction

Petitioner is a state prisoner represented by counsel, proceeding on an amended petition for writ of habeas corpus. Petitioner challenges his 2000 conviction for four counts of assault with a semi-automatic firearm (countl, 2, 7 & 8 Cal.Penal Code § 245(b)), shooting at an occupied motor vehicle (count 3, Cal.Penal Code § 246), attempted murder (count 4, Cal.Penal Code § 664 and § 187(a)), shooting a firearm from a motor vehicle (count 5, Cal.Penal Code § 12034) and street terrorism (count 6, Cal.Penal Code § 186.22(a)). Petitioner is serving a sentence of life in prison plus a consecutive term of 25 years to life and a determinate consecutive term of 12 years, eight months.

Petitioner raises the following claims in his challenge: 1) discovery violations; 2) improper hearsay testimony of a gang expert; 3) preclusion of a dying declaration; 4) severe defense discovery sanctions; 5) ineffective assistance of counsel; 6) Brady violations; 7) replacement of a juror without proper instructions; 8) improper jury instructions; 9) prosecution misconduct; 10) improper sentencing. Amended Petition (AP) at 8-12.

After carefully considering the record, the court recommends that the petition be granted in part.

II. Anti-Terrorism and Effective Death Penalty Act (AEDPA)

The Antiterrorism and Effective Death Penalty Act (AEDPA) applies to this petition for habeas corpus which was filed after the AEDPA became effective. Neelley v. Nagle, 138 F.3d 917 (11th Cir. 1998), citing Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). The AEDPA "worked substantial changes to the law of habeas corpus," establishing more deferential standards of review to be used by a federal habeas court in assessing a state court's adjudication of a criminal defendant's claims of constitutional error. Moore v. Calderon, 108 F.3d 261, 263 (9th Cir.1997).

In Williams (Terry) v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the Supreme Court defined the operative review standard set forth in § 2254(d). Justice O'Connor's opinion for Section II of the opinion constitutes the majority opinion of the court. There is a dichotomy between "contrary to" clearly established law as enunciated by the Supreme Court, and an "unreasonable application of that law. Id. at 405, 117 S.Ct. at 1519. "Contrary to" clearly established law applies to two situations: (1) where the state court legal conclusion is opposite that of the Supreme Court on a point of law, or (2) if the state court case is materially indistinguishable from a Supreme Court case, i.e., on point factually, yet the legal result is opposite.

"Unreasonable application" of established law, on the other hand, applies to mixed questions of law and fact, that is, the application of law to fact where there are no factually on point Supreme Court cases which mandate the result for the precise factual scenario at issue. Williams (Terry), 529 U.S. at 407-08, 120 S.Ct. at 1520-1521 (2000). It is this prong of the AEDPA standard of review which directs deference to be paid to state court decisions. While the deference is not blindly automatic, "the most important point is that an unreasonable application of federal law is different from an incorrect application of law.... [A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant statecourt decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams (Terry), 529 U.S. at 410-11, 120 S.Ct. at 1522 (emphasis in original). The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Visciotti, 537 U.S. 19, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002).

The state courts need not have cited to federal authority, or even have indicated awareness of federal authority in arriving at their decision. Early v. Packer, 537 U.S. 3, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002). Nevertheless, the state decision cannot be rejected unless the decision itself is contrary to, or an unreasonable application of, established Supreme Court authority. Id. An unreasonable error is one in excess of even a reviewing court's perception that "clear error" has occurred. Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S.Ct. 1166, 1175, 155 L.Ed.2d 144 (2003). Moreover, the established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer, 537 U.S. at 9, 123 S.Ct. at 366.

However, where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir.2003).

III. Background

The opinion of the California Court of Appeal contains a factual summary. After independently reviewing the record, the court finds this summary to be accurate and adopts it below.

Around 4:00 or 5:00 p.m. on October 12, 1999, a man on a bicycle approached a car stopped at the intersection of Myrtle and E Streets in Stockton. The bicyclist stared menacingly at the car's passenger, Babaline Lopez. When the driver of the car, Richie Chavez, turned to look at him, the bicyclist raised three fingers and said, "Sur Trece." Chavez replied, "It's all about Norteno." The bicyclist then pulled out a gun and fired at least five shots in the direction of the car, while Chavez drove in reverse.

The verbal exchange between the bicyclist and Chavez contained references to two Hispanic gangs in Stockton—the Nortenos, who are from Northern California and identify themselves with the number 14, and the Surenos, who are from Southern California and use the number 13. The Nortenos and the Surenos are bitter rivals who have killed or assaulted opposing gang members numerous times.

In a photo lineup and at trial, Lopez identified defendant as the bicyclist who shot at Chavez and Lopez. Chavez denied that defendant was the perpetrator, but testified he saw the bicyclist riding in a pickup truck later on the day of the shooting. When Chavez was shown a photo lineup prior to trial, he refused to look at it because he did not want to be labeled a "snitch," especially if he ended up in prison. At the time of trial, Chavez was in prison.

After escaping from defendant, Chavez dropped Lopez off nearby at his house and went to see his friend, Samuel Vasquez. Some time later, Lopez saw Chavez drive past the house with Vasquez and other friends in his car. She also saw a pickup truck drive by with defendant in the passenger seat. Lopez thought that the occupants of the pickup truck observed Chavez's car and that a chase may have ensued. About 20 minutes later, while Lopez was returning from a trip to the store, she saw defendant in the passenger seat of a Suburban driven by the same man who had been driving the pickup truck. One of the men in the Suburban called out to Lopez, "Hey, what's up, girl?" Subsequently, Lopez saw the same two men again in the pickup truck. Thereafter, she heard a series of about five gunshots.

At approximately 7:00 p.m. that evening, Vasquez, his sister, Chonnel, and a friend, Lourdes Vizcarra, were walking to a grocery store at the corner of Washington and E Streets in Stockton, which was about two blocks from where Chavez and Lopez were assaulted two hours earlier. The pickup truck, in which Lopez had seen defendant riding as a passenger, drove up to the pedestrians, and the passenger called out, "What's up, ese?" Vasquez replied, "I'm not a[n] ese. I'm a[n] ene."...