Juarez v. Montgomery

JOSE JUAREZ, Petitioner, v. W.L. MONTGOMERY, Warden, Respondent.

CASE NO. CV 18-06562-AS

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

January 15, 2019

MEMORANDUM DECISION AND ORDER

I. INTRODUCTION

On July 30, 2018, Jose Juarez ("Petitioner"), a California state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254. (Dkt. No. 1). On October 19, 2018, Respondent filed an Answer with an accompanying Memorandum of Points and Authorities. ("Ans. Mem.," Dkt. No. 10). Respondent also lodged documents from Petitioner's state proceedings, including the Clerk's Transcript ("CT") and Reporter's Transcript ("RT"). (Dkt. No. 11). On October 22, 2018, the Court issued an order advising Petitioner that he could file a reply by November 19, 2018. (Dkt. No. 12). Petitioner has not done so.

The parties consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United States Magistrate Judge. (Dkt. Nos. 2, 9, 13). For the reasons discussed below, the Petition is DENIED and this action is DISMISSED with prejudice.

II. PRIOR PROCEEDINGS

On March 19, 2015, after a joint jury trial with co-defendant Carlos Omar Sanchez, a Los Angeles County Superior Court jury found Petitioner guilty of second degree robbery in violation of California Penal Code ("P.C.") § 211 and evading a police officer in violation of California Vehicle Code § 2800.2(a). (CT 194-95, 203-04). The jury also found true the allegation that Petitioner used a firearm to commit the robbery, within the meaning of P.C. 12022.53(b). (CT 194). On April 21, 2015, the court sentenced Petitioner to nineteen years in state prison. (CT 266-71).

Petitioner and his co-defendant appealed their convictions to the California Court of Appeal, which issued an unpublished opinion on February 2, 2015 affirming the judgment, but ordering that a twenty dollar DNA assessment be stricken and Petitioner be awarded 376 days of presentence custody credit. (Lodgment No. 8). Petitioner filed a petition for review in the California Supreme Court (Lodgment No. 9), which summarily denied the petition on May 17, 2017. (Lodgment No. 11).

On February 13, 2018, Petitioner filed a habeas petition in Los Angeles County Superior Court, which the court denied on March 2, 2018, because it raised claims that had already been raised and denied on appeal. (Lodgment Nos. 12-13). On April 13, 2018, Petitioner filed a habeas petition in the California Supreme Court, which was summarily denied on July 11, 2018. (Lodgment Nos. 14-15). The instant Petition was filed in this Court on July 30, 2018.

III. FACTUAL BACKGROUND

The California Court of Appeal reviewed Petitioner's claims on appeal together with the claims of co-defendant Sanchez. The following facts, taken from the California Court of Appeal's decision on direct review, have not been rebutted with clear and convincing evidence and must be presumed correct. 28 U.S.C. § 2254(e)(1); Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009).

In the early morning hours of May 30, 2014, Arnulfo Robles was riding his bicycle on a sidewalk in Whittier, California. A motorcycle drove up from behind and partially blocked Robles's path. There were two people on the motorcycle. The driver said, "Give me your phone." When Robles refused, the driver lifted up the back of his shirt to reveal a handgun, put his fingers around the gun's grip, and warned, "Don't make me." The passenger then added, "Hurry up and give him your phone."

Robles obliged, handing the phone to the passenger. The motorcycle then sped away.

The entire encounter lasted about a minute. Although both the driver and passenger were wearing helmets, the helmets did not cover their eyes or noses, and they had stopped "almost directly" under a streetlight. Robles estimated that he looked at the driver's face for approximately 10 to 15 seconds and at the passenger's face for approximately four to six seconds. He could not tell what race they were. Robles said the driver was wearing a white shirt, blue jeans, and had on a black helmet. Robles said the passenger was wearing a gray sweater and had on a black helmet; Robles did not notice any writing on the sweater.

After the motorcycle pulled away, Robles continued to a friend's house and, once there, called 911. He reported the robbery and told the 911 operator that the passenger looked to be 12 or 13 years old based on his stature on the motorcycle. Robles also activated the "find my iPhone" function on his phone.

The police dispatcher broadcast a description of the motorcycle involved in the robbery, and a patrol car soon thereafter spotted a motorcycle matching that description. The officers in that car activated their lights and sirens. The motorcycle's driver then led themon a high-speed chase during which time the motorcycle jumped on and off various freeways, sped more than 90 miles per hour, ran red lights and signals, and crossed multiple lanes of traffic without looking. Both officers were able to see that the driver was wearing a light-colored shirt, blue jeans, and unlike Robles reported, a white helmet; they saw the passenger wearing a gray top and a black helmet.

Police helicopters assisted with the pursuit. The observer in the first helicopter saw the driver wearing a white shirt, blue pants, and like the officers but unlike Robles reported, a white helmet, and the passenger wearing "like a gray shirt" and a black or dark-colored helmet. The observer in the second helicopter watched the motorcycle disappear under a freeway underpass and continue on with just the driver. Thereafter, the observer saw the driver leave the motorcycle and disappear into a neighborhood on foot.

Within five to ten minutes of losing sight of the motorcycle's occupants, police got word that Robles's iPhone was pinging from a house on South Concord Street. The house was just 1.4 miles from the location of the robbery. On a walkway right outside the house, police discovered an abandoned motorcycle and helmet. Less than 25 minutes later, several police officers entered the two-story house. The house was known to be inhabited bysquatters, and police found seven men - all in their late teens, 20s, and 80s - inside. [Petitioner] was hiding beneath insulation in the house's crawl-space attic, next to a bandana filled with live .38-caliber rounds. He was wearing black shorts and a black shirt. Sanchez was laying behind a couch on the first floor. He was wearing a gray sweatshirt with the letters "CALI" on the chest. Police found Robles's pinging iPhone in the second-floor bedroom; in the same bedroom, they recovered a pair of jeans and two shirts, one of which was a gray shirt with writing on the chest and left sleeve (in the same size as the gray sweatshirt with the letters "CALI"). Police also recovered a motorcycle helmet inside the house.

The police transported Robles in a police cruiser to a location two to three houses down from the house where they found his iPhone. They told Robles they had recovered his iPhone and brought him down "to look at who we caught ... who we arrested." Police then marched [Petitioner], Sanchez, and at least two of the house's other occupants into the street, one at a time, for approximately 30 seconds. Police did not ask any of those men to put on a helmet or to sit atop a motorcycle. Robles identified [Petitioner] as the driver and Sanchez as the passenger. Robles did not identify Sanchez based on his face, but rather because he "recognized" "his body, his buil[d]" and recognized the gray shirt.

Sanchez is five feet four inches tall. After Robles made his identifications, the police said, "Good job, thank you, things like that." Although Robles freely admitted that he was brought to the house "to identify or look at the people who had taken [his] phone" and was expecting to find the robbers, Robles explained that he was not going to "just identify anyone," and he did not identify any of the other people he was shown as being involved in the robbery.

(Lodgment No. 8 at 2-5).

IV. PETITIONER'S CLAIMS

Petitioner raises the following claims for federal habeas relief:

Ground One: Petitioner's trial counsel rendered ineffective assistance by failing to move to suppress Robles's field identification based on the loss of evidence.

Ground Two: The trial court erred by failing to instruct the jury to begin deliberating anew after an alternate juror was seated.

(Petition at 5, 9).

V. STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") "bars relitigation of any claim 'adjudicated on the merits' in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2)." Harrington v. Richter, 562 U.S. 86, 98 (2011). Under AEDPA's deferential standard, a federal court may grant habeas relief only if the state court adjudication was contrary to or an unreasonable application of clearly established federal law or was based upon an unreasonable determination of the facts. 28 U.S.C. § 2254(d). "This is a difficult to meet and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt." Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citations omitted).

Petitioner raised Ground One is his petition on direct review in the California Supreme Court (Lodgment No. 9), and he later raised Grounds One and Two in his habeas petition in the California Supreme Court. (Lodgment No. 14). Both petitions were denied without comment or citation to authority. (Lodgment Nos. 11, 15). The Court "looks through" the California Supreme Court's silent denial to the last reasoned decision as the basis for the state court's judgment. See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) ("Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground."); Cannedy v. Adams, 706 F.3d 1148,...