Vasquez v. Spearman

ISAAC VASQUEZ, Petitioner, v. M. ELIOT SPEARMAN, Respondent.

No. 2:18cv0073 TLN KJN (HC)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

April 23, 2020

FINDINGS & RECOMMENDATIONS

I. Introduction

Petitioner is a state prisoner, proceeding without counsel, with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2012 conviction for second degree murder, four counts of attempted murder, and shooting at an inhabited dwelling. Petitioner was originally sentenced to a total of 129 years and 4 months in state prison. His sentence was later reduced on remand following direct appeal. Petitioner claims that: (1) his constitutional right to confront witnesses was violated by the gang expert's reliance on testimonial hearsay in forming his opinion as proffered by the People; (2) the trial court erred in excluding a portion of his statement to police pursuant to California Evidence Code section 356; (3) the trial court erroneously permitted expert opinion testimony concerning the likelihood of petitioner and his co-defendants firing first in violation of petitioner's due process rights; (4) trial counsel provided ineffective assistance for failing to ensure the trial court ruled on a request to introduce a Facebook post by the victim on the date of the incident; and, finally, (5) cumulative error. After careful review of the record, this court concludes that the petition should be denied.

II. Procedural History

On August 2, 2012, a jury found petitioner guilty of second degree murder (Cal. Pen. Code,¹ § 187(a) [count 1]), four counts of attempted murder (§ 664/187(a) [counts 2-5]), and shooting at an inhabited dwelling (§ 246 [count 6]). Further, numerous firearm related enhancements were found true as to all counts (§§ 12022.5(a)(1), 12022.53(c) & (d) & (e)(1)), as was an enhancement that the offenses were committed for the benefit of a criminal street gang (§186.22(b)(1)). The special circumstance of shooting a firearm from a motor vehicle with the intent to inflict great bodily injury (§ 190(d)) was also found true as to the second degree murder conviction. (LD 2 at 374-85.)² On September 14, 2012, petitioner was sentenced to state prison as follows: to an indeterminate term of 120 years-to-life for the second degree murder (count 1) and to a determinate term of 9 years and 4 months for the attempted murder (counts 2-5) and shooting at an inhabited dwelling (count 6) convictions. (LD 2 at 464-67.)

Petitioner appealed the conviction to the California Court of Appeal, Third Appellate District. The Court of Appeal modified the judgment "to strike the gang enhancement findings under [] section 186.22, subdivision (b), and vicarious firearm enhancement findings under [] section 12022.53, subdivision (e)(1), as well as the sentences imposed thereon," but otherwise affirmed the convictions on September 6, 2016. (See ECF Doc. 12-1 & LD 17.)

Petitioner filed a petition for review in the California Supreme Court (LD 19³), which was denied on December 19, 2016. (LD 21.⁴)

The Sacramento County Superior Court filed amended abstracts of judgment on January 26, 2017, reflecting that petitioner was resentenced to a determinate term of 9 years, 4 months, plus an indeterminate term of 20 years-to-life in state prison. (LD 22.⁵)

Petitioner filed the instant petition on January 12, 2018. (ECF No. 1.) Respondent answered on May 23, 2018. (ECF No. 12.)

III. Preliminary Statement

Petitioner's habeas petition is comprised of the form petition and attachments as supporting argument or points and authorities for the five grounds raised therein. More particularly, the attached portions are arguments asserted in the Petition for Review filed with the California Supreme Court and an argument taken from a codefendant's opening brief, joined by petitioner, in the direct review proceeding before the Third District Court of Appeal. (Cf. ECF No. 1 to LD 19 to LD 13 at 11-19.)

This court's task on federal habeas review is to assess whether the state appellate court determinations of the claims presented to it were unreasonable or contrary to existing federal law, or whether the state court's factual determinations were unreasonable. 28 U.S.C. § 2254(d). In this case, those determinations were made by the Third District Court of Appeal. Therefore, to the degree petitioner's arguments here reference a basis for the California Supreme Court to grant review, the arguments are not addressed. Rather, the undersigned treats these arguments as asserting that the state court determinations were unreasonable, thus entitling petitioner to relief in this court.

IV. Facts⁶

In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:

Deandre Ellison was shot to death as he drove into his driveway in the Del Paso Heights neighborhood of Sacramento. Four other men, including Latrele Neal, were also in Ellison's car. Before the car came to a stop in the driveway, an SUV driven by Jesse Cornejo slowly drove past Ellison's house; the SUV's front and backseat passengers, Adam Cornejo and Isaac Vasquez, opened fire on Ellison's car.[] Neal managed to return fire with Ellison's gun before the SUV drove away. About 20 bullets were exchanged between the vehicles. Bullets also struck Ellison's house. Ellison was the only casualty. After crashing the SUV while being pursued by law enforcement, Adam, Jesse, and Isaac were taken into custody a short time later. Each was a Norteño gang member. Isaac was 16 years old with a developmental disability; Adam and Jesse were 17 and 18 years old, respectively.

(People v. Cornejo, 3 Cal.App.5th 36, 41-42 (2016), fn. omitted; see also ECF No. 12-1 & LD 17.)

V. Standards for a Writ of Habeas Corpus

An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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).

For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the last reasoned state court decision.Thompson v. Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, 132 S. Ct. 38, 44-45 (2011)); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)). Circuit court precedent "may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)). However, circuit precedent may not be "used to refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has not announced." Marshall v. Rodgers, 569 U.S. 58, 64 (2013) (citing Parker v. Matthews, 132 S. Ct. 2148, 2155 (2012) (per curiam)). Nor may it be used to "determine whether a particular rule of law is so widely accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court, be accepted as correct. Id. Further, where courts of appeals have diverged in their treatment of an issue, it cannot be said that there is "clearly established Federal law" governing that issue. Carey v. Musladin, 549 U.S. 70, 77 (2006).

A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640 (2003). Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case.⁷ Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams v. Taylor, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). In this regard, a federal habeas court "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. Rather, that application must also be unreasonable." Williams v. Taylor, 529 U.S. at 411. See also Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (it is "not enough that a federal habeas court, in its'independent review of the legal question,' is left with a '"firm conviction"' that the state court was '"erroneous"'"). "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." Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, "[a]s a condition for obtaining habeas corpus from a ...