Oropeza v. Wong

HECTOR ARTHURO OROPEZA, Petitioner,

v.WARDEN ROBERT K. WONG, Respondent.

No. C 09-1871 RMW (PR)

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Filed: December 2, 2010

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; GRANTING CERTIFICATE OF APPEALABILITY

Petitioner, a state prisoner proceeding pro se, sought a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging a 2006 decision by the California Board of Parole Hearings ("Board") finding him unsuitable for parole. Respondent was ordered to show cause why the writ should not be granted. Respondent has filed an answer, along with a supporting memorandum of points and authorities and exhibits. Petitioner has responded with a traverse. For the reasons set forth below, the petition for a writ of habeas corpus is DENIED.¹

BACKGROUND²

On March 1, 1991, Richard Figueroa ("victim") and his brother, Dennis, were at a restaurant and nightclub in San Jose. (Op. at 2.) At around 2:00 a.m., they left the establishment with their friends, Gus Toumi, Brenda Butler, and Susan Douglass, and headed to Butler's condo. (Id at 2-3.) Butler drove Toumi and Dennis in her car, and Douglass followed them in her car, with the victim as the passenger. (Id. at 3.) As they were getting on the Expressway, two men in a Honda Civic pulled alongside Butler's car. (Id.) The passenger in the Honda, petitioner, was yelling at Butler and "flipping [them] off." (Id.)

Butler pulled over because she wanted to wait for Douglass' car and also because she did not want the Honda to follow her. (Id.) A minute or two later, the Honda pulled up behind Butler, and behind the Honda was Douglass. (Id.) The Honda then moved slowly up to the side of Butler's car. (Id.) Butler told Toumi she did not want the Honda to follow her to her apartment and asked Toumi to get out and tell Douglass that they were not leaving until the Honda left. (Id.) As Toumi was going to Douglass' car, petitioner formed a "gun" with his hand and pointed it at Butler. (Id.) Butler became afraid and drove off. (Id.) Toumi testified that as she drove off, he heard her scream that petitioner had a knife. (Id. at 4.)

The Honda followed Butler. (Id.) Butler turned off her lights and pulled into someone's driveway. (Id.) About 20 seconds later, she saw the Honda pull into a driveway across the street. (Id.) Thinking she had been followed, she drove away, sped up to lose the Honda, and drove to her apartment complex. (Id.) When she did not see the Honda any longer, she pulled into her garage, and she and Dennis went up to her apartment. (Id.)

Meanwhile, Toumi got into Douglass' car and saw Butler drive out of the driveway and speed away. (Id.) Although Douglass tried to follow Butler, she was too fast and Douglass accidentally turned onto a dead end street. (Id.) She made a u-turn and on the way back, she heard two loud thumps hitting the back of her car. (Id.) Douglass pulled over and got out to see what it was. (Id.)

After Douglass got out of the car, the Honda pulled up next to her and she saw petitioner holding a knife with a four-inch long blade. (Id.) Douglass jumped into her car and sped off and the Honda followed her. (Id.) Douglass pulled into a parking lot near Butler's apartment and thought she had lost the Honda because she did not see it behind her. (Id.) Twenty seconds later, the Honda pulled up behind Douglass and blocked her in by parking perpendicularly to Douglass' car. (Id. at 5.)

Petitioner and his co-defendant ran to Douglass' car. (Id.) The victim got out and held his hands with the palms up as if to ask what the problem was. (Id.) Petitioner and his co-defendant did not say anything, but attacked the unarmed victim. (Id.) They each hit him about a dozen times, moving their arms quickly. (Id.) After about thirty seconds, petitioner and his co-defendant ran back into the car and drove off. (Id.)

Afterward, the victim walked toward Douglass' car and looked at her. (Id.) Before he could reach her, however, he fell to the ground. (Id.) He died at the hospital a few hours later. (Id.) The autopsy revealed that the victim suffered 23 knife wounds. (Id.)

Petitioner was found guilty at a jury trial of second-degree murder. (Id. at 6.) The trial court sentenced him to 15-years to life. (Id.)

DISCUSSION

A. Standard of Review

A district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless 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). The first prong applies both to questions of law and to mixed questions of law and fact, Williams (Terry) v. Taylor, 529 U.S. 362, 407-09 (2000), while the second prong applies to decisions based on factual determinations, Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

A state court decision is "contrary to" Supreme Court authority, that is, falls under the first clause of § 2254(d)(1), only if "the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams (Terry), 529 U.S. at 412-13. A state court decision is an "unreasonable application of Supreme Court authority, that is, falls under the second clause of § 2254(d)(1), if it correctly identifies the governing legal principle from the Supreme Court's decisions but "unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. The federal court on habeas review may not issue the writ "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. Rather, the application must be "objectively unreasonable" to support granting the writ. See id. at 409.

"Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary." Miller-El, 537 U.S. at 340. Under 28 U.S.C. § 2254(d)(2), a state court decision "based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El, 537 U.S. at 340; see also Torres v. Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000).

When there is no reasoned opinion from the highest state court to consider the petitioner's claims, the court looks to the last reasoned opinion. See Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991); Shackleford v. Hubbard, 234 F.3d 1072, 1079, n.2 (9th Cir. 2000). In this case, the last reasoned opinion is that of the California Court of Appeal denying petitioner's habeas petition (Petition, Ex. B).

B. December 1, 2006 Board Hearing

Petitioner had been incarcerated for approximately 14 years at the time of his 2006 hearing. Petitioner's minimum parole eligibility date was June 7, 2001. (Petition, Ex. A, 2006 Transcript ("Tr.") at 1.)

1. Petitioner's version of events

That night, petitioner had been drinking beer, and after initially opting not to go bowling with some friends, he changed his mind because he had been working all week and it was his first week working day shifts instead of nights. (Id. at 26-27.) At some point in the night, petitioner also had a few mixed drinks with vodka. (Id. at 27.) Petitioner stated that he had always been a responsible person and drinking excessively was not a common occurrence for him. (Id. at 28-29.)

Petitioner found the knife that he used in his co-defendant's car. (Id. at 30.) Petitioner stated that when the parties began to argue, everyone overreacted. (Id. at 32.) Petitioner was not aware that the victim was unarmed. (Id.) Petitioner recalls that when his co-defendant first stopped in car in a driveway, it was the driveway of a friend's house, and they hid behind a fence. (Id. at 33.) Petitioner then saw Douglass' car stop across the street and one of the guys in the car started to taunt him, so petitioner picked up a stone and threw it at the car. (Id.) Words were exchanged and Douglass drove away. (Id.) As petitioner and his co-defendant got back into their car and started to make a u-turn, Douglass drove back. (Id.) She got out of the car and started yelling at and threatening petitioner. (Id. at 33-34.) At that point, petitioner started to get angry. (Id. at 34.) Petitioner states that Douglass said she was going to come back to get him with a.45 and, at that point, petitioner picked up the knife. (Id.)

Douglass then drove off, and petitioner's co-defendant followed them. (Id.) When Douglass pulled over, petitioner's car also pulled over. (Id.) Petitioner and the victim got out of their cars and began arguing. (Id.) Soon, it turned into a fistfight and then, the stabbing. (Id.) As soon as petitioner realized what he was doing, he stopped. (Id.) When the physical altercation began, petitioner started stabbing the victim in the leg. (Id. at 35.) When petitioner realized that he was swinging widely, he was angry with himself right away and felt shame. (Id.) He and the victim looked at each other and petitioner knew he had stabbed him. (Id.) The co-defendant was calling petitioner back to the car, so petitioner said, "I'm sorry" to the victim and ran. (Id. at 36.) Petitioner did not get help for the victim because he knew that there were other people around who would have done so, and because the victim was still standing when he left. (Id.) When petitioner later learned how many times he had stabbed the victim, he was in disbelief. (Id.)

When asked what he thinks about when he thinks about the victim, p...