Rivera v. Miller et al, No. 3:2013cv02708 - Document 33 (S.D. Cal. 2015)
Court Description: ORDER Denying Petition for Writ of Habeas Corpus, and (1) Dismissing Attorney General as Respondent; (2) Adopting Magistrate Judge's Report and Recommendation; and (3) Denying Certificate of Appealability. Signed by Judge Marilyn L. Huff on 01/06/2015.(All non-registered users served via U.S. Mail Service)(ag)
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Rivera v. Miller et al Doc. 33 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 GAMALIER REYES RIVERA, 11 Petitioner, 12 13 (2) ADOPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION; AND 15 17 18 19 20 ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, AND (1) DISMISSING ATTORNEY GENERAL AS RESPONDENT; vs. 14 16 CASE NO. 13-cv-2708-H (DHB) AMY MILLER, Warden, et al., Respondents. [Doc. No. 25] (3) DENYING CERTIFICATE OF APPEALABILITY [Doc. No. 31] On November 8, 2013, Petitioner Gamalier Reyes Rivera (“Petitioner”), a state 21 prisoner proceeding pro se and in forma pauperis, filed a petition for writ of habeas 22 corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) On April 9, 2014, Respondent 23 filed a response to the petition. (Doc. No. 17-1.) On July 23, 2014, Petitioner filed a 24 traverse. (Doc. No. 24.) On October 8, 2014, the magistrate judge issued a report and 25 recommendation (“report”) to dismiss Kamala Harris as Respondent, deny the petition 26 for writ of habeas corpus, and deny the request for an evidentiary hearing. (Doc. No. 27 25.) On December 8, 2014, Petitioner filed objections to the report. (Doc. No. 32.) 28 Also on December 8, 2014, Petitioner filed an application for a certificate of -1- 13cv2708-H(DHB) Dockets.Justia.com 1 appealability. (Doc. No. 31.) After careful consideration, the Court denies the petition 2 for writ of habeas corpus, adopts the magistrate judge’s report and recommendation, 3 dismisses Kamala Harris as Respondent, and denies the application for certificate of 4 appealability. 5 Background 6 I. Procedural History 7 On January 31, 2011, a jury convicted Petitioner of two counts of attempted first 8 degree murder, two counts of aggravated mayhem, one count of residential burglary. 9 (Lodg. No. 1, vol. 1, part 2 at 189-97.) The jury also found the enhancements 10 associated with the guilty verdicts to be true. (Id.) Petitioner appealed his conviction 11 to the California Court of Appeal, Fourth Appellate District, Division One. (Lodg. No. 12 4.) The state appellate court affirmed Petitioner’s convictions in an unpublished 13 written opinion. (Lodg. No. 7.) Petitioner then filed a petition for review in the 14 California Supreme Court, which denied the petition without citation of authority. 15 (Lodg. Nos. 8, 9.) 16 Following that denial, Petitioner filed a petition for writ of habeas corpus in the 17 San Diego Superior Court. (Lodg. No. 10.) The superior court denied the petition in 18 an unpublished order. (Lodg. No. 11.) Petitioner then filed a petition for writ of 19 habeas corpus in the California Court of Appeal, which denied the petition in an 20 unpublished order. (Lodg. Nos. 12, 13.) Finally, Petitioner filed a habeas corpus 21 petition in the California Supreme Court, which denied the petition without citation of 22 authority. (Lodg. Nos. 14, 15.) 23 On November 8, 2013, Petitioner filed a petition for writ of habeas corpus 24 pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) In his traverse, Petitioner agrees to the 25 removal of Kamala Harris as a Respondent. (Doc. No. 24 at 9.)1 Petitioner argues his 26 27 1 Page numbers for docketed materials refer to those imprinted by the Court’s 28 electronic case filing system. -2- 13cv2708-H(DHB) 1 trial and appellate counsel were ineffective. (Id. at 19-31.) Petitioner contends the 2 prosecutor committed misconduct. (Id. at 32-33.) He also claims the trial court did not 3 properly instruct the jury. (Id. at 33-37.) 4 Respondent argues the state courts’ resolution of the claims was neither contrary 5 to, nor an unreasonable application of, clearly established Supreme Court law. (Doc. 6 No. 17-1 at 38.) In addition, Respondent contends the claim regarding jury instructions 7 is procedurally barred. (Id. at 15-18.) 8 II. Statement of Facts 9 The Court takes the following facts from the California Court of Appeal’s 10 opinion: 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Rivera married Erika Von Der Heyde in 2002. They had a daughter and lived together in San Ysidro until they divorced in 2006. They remarried in 2007 and lived together in Imperial Beach, but separated again in December 2008, and began divorce proceedings for a second time. They both started dating other people. However, the divorce was contentious. They argued over custody and support issues. Eventually, Von Der Heyde restricted communication with Rivera through her attorney only. On or about July 5, 2009, Von Der Heyde, along with her daughter, moved into her boyfriend's home in Escondido. Von Der Heyde decided to move to Escondido from Imperial Beach because she was afraid Rivera was going to take their daughter and flee to Puerto Rico. Von Der Heyde slept in a bedroom with Jesus Vinas, her boyfriend, and her daughter slept in a separate room. Two other couples also lived in the house. One of those couples was Chris Anguiano and Samantha Shaffer, who shared a bedroom in the house as well. On the night of July 8, 2009, sometime around midnight, Rivera hired a taxi to drive him from Imperial Beach to Escondido, a distance of about 45 to 50 miles. He hired a taxi despite the fact that he owned a vehicle he could have driven that night. He left the vehicle in its parking space at his apartment and called a taxi from a 7–Eleven that was between a half-mile to a mile away from his residence. He left his television on and the front door to his apartment unlocked. Rivera also did not bring his cell phone with him. Although he did not recall why he left it, he did admit the cell phone could have been used to track his position. After arriving at Vinas's house, Rivera entered it, armed with two hatchets, and walked into a bedroom where Anguiano and Shaffer lay sleeping. A dog in the bedroom started barking, which caused Anguiano to wake up. Anguiano reached across Shaffer to grab his glasses from a window sill. At that moment, Rivera started hitting Anguiano with a hatchet. He hit him first in the chest, causing Anguiano to fall on top of Shaffer who was lying in the bed. Rivera continued his attack on Anguiano, striking his back with a hatchet several times. When Anguiano was finally able to stand up, Rivera struck him in the face -3- 13cv2708-H(DHB) 1 2 3 4 5 6 7 8 9 10 11 12 13 with a hatchet. Anguiano attempted to defend himself, was able to throw Rivera to the ground, but Rivera struck him again in the face with the hatchet. Anguiano eventually passed out on the bedroom floor. At one point during the struggle, Rivera moved toward Shaffer. During the attack, Shaffer was screaming, which woke up Vinas, and he went to her bedroom. He pulled Rivera away from Anguiano and dragged him out of the room. Vinas struggled with Rivera, and Rivera eventually dropped the one hatchet he still possessed (the other hatchet was found in the house, apparently dropped by Rivera earlier). At that point, Rivera fled from the house, but was arrested a short time later at a nearby 7–Eleven. Anguiano suffered life threatening injuries from the attack, including a deep laceration to his face and one to his lower neck, which cut across the trachea, through the clavicle and down into the deltoid muscle. He also suffered lacerations to his arms and back. Due to his blood loss, Anguiano went into full cardiac arrest about 20 minutes after arriving at a hospital. Anguiano underwent surgery, and remained in a coma for about two months. As a result of his injuries, Anguiano suffers from a host of significant problems. He has a grossly abnormal gait, has problems with balance and coordination, and is blind. He also suffers symptoms of posttraumatic stress disorder (PTSD), including insomnia, depression, nightmares, and flashbacks. 15 Shaffer suffered injuries to her thighs, knees and a toe from Rivera's hatchet attack. She has scars on her legs and endures chronic pain in her legs. She is unable to work because she cannot stand for long periods of time and suffers from PTSD. 16 Defense 17 Rivera testified on his own behalf. He admitted entering Vinas's house armed with two hatchets and using the hatchets to inflict the injuries suffered by Anguiano and Shaffer. However, he testified he did not intend to hurt anyone when he entered the house, and he inflicted the injuries only in self-defense after Anguiano attacked him. Rivera explained that his plan was to enter the house and only scare Von Der Heyde with the hatchets. Although he had a service firearm from his job as a border patrol agent, he decided to bring hatchets, not his gun, because he believed hatchets were “the scariest thing.” His purported purpose for this plan was to motivate Von Der Heyde to become more cooperative regarding the custody of their daughter. He testified that his plan went awry when the first room he entered happened to be occupied by Anguiano and Shaffer instead of Von Der Heyde. 14 18 19 20 21 22 23 24 People v. Rivera, No. DO59464, 2012 WL 2168806, at *1-2 (Cal. Ct. App. June 14, 25 2012). (Lodg. No. 7 at 2-5.) 26 / / / 27 / / / 28 / / / -4- 13cv2708-H(DHB) 1 Discussion 2 I. Standard of Review 3 A federal court may review a petition for writ of habeas corpus by a person in 4 custody pursuant to a state court judgment “only on the ground that he is in custody in 5 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 6 2254(a); accord Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000). Habeas corpus is 7 an “extraordinary remedy” available only to those “persons whom society has 8 grievously wronged . . . .” Juan H. v. Allen, 408 F.3d 1262, 1270 (9th Cir. 2005) 9 (quoting Brecht v. Abrahamson, 507 U.S. 619, 633-34 (1993)). Because Petitioner 10 filed this petition after April 24, 1996, the Anti-Terrorism and Effective Death Penalty 11 Act of 1996 (“AEDPA”) governs the petition. See Lindh v. Murphy, 521 U.S. 320, 327 12 (1997); Chein v. Shumsky, 373 F.3d 978, 983 (9th Cir. 2004) (en banc). “When a 13 federal claim has been presented to a state court and the state court has denied relief, 14 it may be presumed that the state court adjudicated the claim on the merits in the 15 absence of any indication or state-law procedural principles to the contrary.” Id. 16 Federal habeas relief is available only if the result reached by the state court on the 17 merits is “contrary to,” or “an unreasonable application” of United States Supreme 18 Court precedent, or if the adjudication is “an unreasonable determination” based on the 19 facts and evidence. 28 U.S.C. §§ 2254(d)(1)-(d)(2). 20 A federal court may grant habeas relief only if a state court either “applies a rule 21 that contradicts the governing law set forth in [the United States Supreme Court’s] 22 cases” or “confronts a set of facts that are materially indistinguishable from a decision 23 of [the] Court and nevertheless arrives at a result different from [the Court’s] 24 precedent.” Early v. Packer, 537 U.S. 3, 8 (2002); see also Williams, 529 U.S. at 40525 06 (distinguishing the “contrary to” and the “unreasonable application” standards). 26 “[R]eview under 28 U.S.C. § 2254(d)(1) is limited to the record that was before the 27 state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 131 S. Ct. 28 1388, 1398 (2011). “Although the Supreme Court has declined to decide whether a -5- 13cv2708-H(DHB) 1 district court ‘may ever choose to hold an evidentiary hearing before it determines that 2 § 2254(d) has been satisfied,’ an evidentiary hearing is pointless once the district court 3 has determined that § 2254(d) precludes habeas relief.” Sully v. Ayers, 725 F.3d 4 1057, 1075 (9th Cir. 2013) (citing Pinholster, 131 S.Ct. at 1411 n. 20). 5 A federal court may grant habeas relief under the “unreasonable application” 6 clause of § 2254(d)(1) if the state court “identifies the correct governing legal rule from 7 [the Supreme] Court's cases but unreasonably applies it to the facts of the particular 8 state prisoner's case.” Williams, 529 U.S. at 407. A federal court may also grant 9 habeas relief “if the state court either unreasonably extends a legal principle from 10 [Supreme Court] precedent to a new context where it should not apply or unreasonably 11 refuses to extend that principle to a new context where it should apply.” Id. The state 12 court's “unreasonable application” of binding precedent must be objectively 13 unreasonable to the extent that the state court decision is more than merely incorrect 14 or erroneous. Wiggins v. Smith, 539 U.S. 510, 520–21 (2003) (citation omitted); see 15 also Lockyer v. Andrade, 538 U.S. 63, 75–76 (2003). 16 Additionally, even if a state court decision is “contrary to” United States 17 Supreme Court precedent or rests on an “unreasonable determination” of facts in light 18 of the evidence, the petitioner must show that such error caused substantial or injurious 19 prejudice. Penry v. Johnson, 532 U.S. 782, 795 (2001) (quoting Brecht, 507 U.S. at 20 637-38); see also Fry v. Pliler, 551 U.S. 112, 121-22 (2007); Bains v. Cambra, 204 F.3d 21 964, 977 (9th Cir. 2000). AEDPA creates a highly deferential standard toward state 22 court rulings. Woodford v. Viscotti, 537 U.S. 19, 24 (2002); see Womack v. Del Papa, 23 497 F.3d 998, 1001 (9th Cir. 2007) (citing Woodford, 537 U.S. 19 (2002)). 24 In determining whether a state court decision is contrary to clearly established 25 federal law, the court looks to the state’s last reasoned decision. Avila v. Galaza, 297 26 F.3d 911, 918 (9th Cir. 2002). Where there is an unexplained decision from the state’s 27 highest court, the court “looks through” to the last reasoned state judgment and 28 presumes that the unexplained opinion rests upon the same ground. -6- Ylst v. 13cv2708-H(DHB) 1 Nunnemaker, 501 U.S. 797, 801-06 (1991). 2 A district court “may accept, reject, or modify, in whole or in part, the findings 3 or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). If a party objects 4 to any portion of the magistrate’s report, the district court reviews de novo those 5 portions of the report. Id. 6 II. Analysis 7 A. Ineffective Assistance of Trial Counsel Claim 8 Petitioner asserts trial counsel was ineffective. Respondent contends the state 9 court’s resolution of these claims was neither contrary to, nor an unreasonable 10 application of, clearly established United States Supreme Court law. (Doc. No. 17-1 11 at 18-26.) 12 The Sixth Amendment guarantees a criminal defendant the right to effective 13 assistance of counsel. Strickland v. Washington, 466 U.S. 668, 684-86 (1984). To 14 establish ineffective assistance of counsel, a petitioner must first show his attorney’s 15 representation fell below an objective standard of reasonableness. Id. at 688. He must 16 also show the errors caused him prejudice. Id. at 694. To establish prejudice under 17 Strickland, a petitioner must demonstrate that the attorney's error rendered the result 18 unreliable or the trial fundamentally unfair. Id.; see also Fretwell v. Lockhart, 506 U.S. 19 364, 372 (1993). 20 “Surmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 21 559 U.S. 356, 372 (2010). In evaluating whether counsel’s performance was deficient, 22 “[j]udicial scrutiny of counsel’s performance must be highly deferential.” Strickland, 23 466 U.S. at 689. There is a “strong presumption that counsel’s performance falls 24 within a wide range of reasonable professional assistance.” Id. The court need not 25 address both the deficiency prong and the prejudice prong if the defendant fails to make 26 a sufficient showing of either one. Id. at 697. 27 Petitioner first raised his ineffective assistance of trial counsel claims in the 28 habeas corpus petition he filed in the San Diego Superior Court. (Lodg. No. 10.) The -7- 13cv2708-H(DHB) 1 superior court denied the claims, stating the claims “could have been addressed on 2 appeal.” (Lodg. No. 11 at 2.) The court also addressed the merits, stating that “given 3 the great weight of the evidence, Petitioner has failed to show a reasonable probability 4 that the result of the proceedings would have been different.” (Id.) Petitioner raised 5 the same claims in the petition he filed in the California Court of Appeal. (Lodg. No. 6 12.) The appellate court denied the petition, holding that the claims were procedurally 7 barred because Petitioner could have raised the claims on direct appeal. Finally, 8 Petitioner raised his claims in the California Supreme Court, which denied the petition 9 without citation of authority. (Lodg. Nos. 14, 15.) 10 Because the California Supreme Court denied the petition in an unexplained 11 opinion, this Court “look[s] through” to the last reasoned state opinion. See Ylst, 501 12 U.S. at 806. The appellate court’s “reliance on the relitigation rule does not amount to 13 a ruling on the merits or a denial on procedural grounds . . . .” Pirtle v. Morgan, 313 14 F.3d 1060, 1168 (9th Cir. 2005) (citing Ylst, 501 U.S. at 805-06) (holding that “when 15 it is clear that a state court has not reached the merits of a properly raised issue, we 16 must review it de novo”). It is not clear whether this Court should look to the appellate 17 court’s opinion, which is reviewed de novo, Pirtle, 313 F.3d at 1167, or to the superior 18 court’s analysis on the merits, which calls for deferential review, Delgado v. Lewis, 19 223 F.3d 976, 982 (9th Cir. 2000). The Court need not decide this issue because 20 Petitioner’s claims fail even under the more liberal Pirtle standard. 21 Petitioner contends his trial counsel was ineffective. But in light of the facts of 22 the case, counsel made a reasonable tactical decision to focus on disproving the intent 23 elements of attempted murder, torture, and mayhem in the evidence and in closing 24 argument. Counsel’s statements were reasonable, tactical decisions in the context of 25 his argument as a whole. See Richter, 131 S. Ct. at 788. Counsel was at least partially 26 successful, because the jury acquitted Petitioner of the torture counts. 27 Petitioner must also show the errors caused prejudice by establishing “a 28 reasonable probability that, but for counsel’s unprofessional errors, the result of the -8- 13cv2708-H(DHB) 1 proceeding would have been different.” Strickland, 466 U.S. at 694. Petitioner has not 2 established prejudice. Petitioner admitted he went to Vinas’s house armed with two 3 hatchets. (Lodg. No. 3, vol. 5 at 296-98.) When traveling to Vinas’s house, Petitioner 4 made efforts to cover his tracks. (Id. at 299.) Petitioner called a taxi from a 7-Eleven 5 up to a mile away from his house. (Id.) This enabled him to leave his car at his 6 residence, making it appear he was at home at the time of the crime. (Id. at 335.) In 7 addition, he left his house unlocked, the television on, and his cell phone at home in a 8 further effort to establish an alibi. (Id. at 333-35.) When he arrived in Escondido, he 9 had the taxi driver drop him off several blocks away from Vinas’s house. (Id. at 300.) 10 The jury had an opportunity to consider and reject Petitioner’s testimony that he only 11 intended to frighten Von Der Heyde regarding a custody dispute about their daughter. 12 In addition, the jury heard evidence that Von Der Heyde discovered a list written 13 by Petitioner while they were married. The list read as follows: 14 Getting Rid of the Wasted 15 1. Tools, gloves, bag big and dark, zip ties, weights, boots, bag for boots and gloves 16 17 2. 4/17/05 Surveillance on area. (Late hours). Find a spot for vehicle away from road view. Learn best route from vehicle to mint. 18 3. Snap it, rope it, bag it, dump it. Leave no prints. 19 4. Throw away gloves and boots separately. Wash vehicle and vacuum. (Not in station). 20 21 5. In the morning: Daycare while calling Keila, Nelly (mad) where is she? 22 * Bag her purse & cell phone, clothes (make it look like she walked out). Call my cell phone. (Help). (No answer). 23 6. (Work Time). Go to work explain situation. (Try to work). Make frequent calls to Erika. 24 25 26 27 28 7. Next day, emergency family leave. Ask for advice. (Don’t know) * Throw away receipts for bag and weights. (Lodg. No. 3, vol. 4 at 125-27; vol. 5 at 324; Lodg. No. 7 at 6-7.) Von Der Heyde and her brother both believed the list was Petitioner’s plan to kill -9- 13cv2708-H(DHB) 1 her. (Lodg. No. 3, vol. 4 at 125.) Both Von Der Heyde and her brother called the 2 police about the list. (Id.) The jury could conclude that the list was additional 3 evidence of Petitioner’s intent toward Von Der Heyde. The jury could reasonably 4 reject Petitioner’s claim that he only intended to frighten Von Der Heyde when he 5 broke into Vinas’s house in the middle of the night armed with two hatchets. In sum, 6 Petitioner has not established trial counsel undermined his defense because he has not 7 satisfied either prong of the Strickland test. Accordingly, he is not entitled to relief on 8 this claim. 9 Petitioner next contends trial counsel was ineffective for failing to adequately 10 cross examine Anguiano and Shaffer about inconsistencies between statements they 11 made to investigators before trial and their testimony at trial. (Doc. No. 1 at 8-11; Doc. 12 No. 24 at 30-31.) Petitioner additionally complains that his trial counsel did not point 13 out discrepancies in the victims’ testimony. Vigorously cross examining a severely and 14 permanently injured victim over minor discrepancies in his memory of the incident 15 would not have helped Petitioner.2 16 Petitioner also faults counsel for failing to adequately cross examine Shaffer, the 17 other victim, about her description of the attack. (Doc. No. 1 at 10-11; Doc. No. 24 at 18 27-30.) But Petitioner does not explain how cross examining Shaffer about these 19 issues would have altered the outcome of the trial. See Strickland, 466 U.S. at 694. 20 21 22 23 24 25 26 27 2 The state appellate court described Anguiano’s injuries as follows: “Anguiano suffered life threatening injuries from the attack, including a deep laceration to his face and one to his lower neck, which cut across the trachea, through the clavicle and down into the deltoid muscle. He also suffered lacerations to his arms and back. Due to his blood loss, Anguiano went into full cardiac arrest about 20 minutes after arriving at a hospital. Anguiano underwent surgery, and remained in a coma for about two months. As a result of his injuries, Anguiano suffers from a host of significant problems. He has a grossly abnormal gait, has problems with balance and coordination, and is blind. He also suffers symptoms of posttraumatic stress disorder (PTSD), including insomnia, depression, nightmares, and flashbacks.” 28 (Lodg. No. 7 at 2.) - 10 - 13cv2708-H(DHB) 1 Moreover, Petitioner has not established that any such failure caused prejudice because 2 the evidence of his guilt was overwhelming. Accordingly, he is not entitled to relief 3 on this claim. 4 Petitioner next faults his trial counsel for failing to request CALCRIM 3404 on 5 the defense of accident or misfortune and CALCRIM 3470 on self defense. (Doc. No. 6 1 at 11; Doc. No. 24 at 31.) “[T]he claim that a [crime] was committed through 7 misfortune or accident amounts to a claim that the defendant acted without forming the 8 mental state necessary to make his or her actions a crime.” People v. Jennings, 50 Cal. 9 4th 616, 674 (2010) (quotations omitted). The Court agrees with the trial judge that the 10 defense of accident did not apply. See People v. Szadziewicz, 161 Cal. App. 4th 823 11 (2008) As a result, Petitioner has not established prejudice. See Strickland, 466 U.S. 12 at 694. The trial court properly instructed the jury that to find Petitioner guilty of the 13 attack on Shaffer, they had to conclude, beyond a reasonable doubt, that he acted with 14 the requisite intent. (See Lodg. No. 1 at 176-80.) The jury’s guilty verdicts on the 15 aggravated mayhem and assault with a deadly weapon charges indicate that they found 16 he had the requisite intent. Thus, even if counsel had asked for the accident instruction 17 and the trial court agreed to give it, the result of the proceedings would not have been 18 different. See Strickland, 466 U.S. at 694. 19 Petitioner also faults counsel for failing to request self defense jury instructions. 20 (Doc. No. 1 at 11; Doc. No. 24 at 31.) The trial judge cited a case to counsel and stated 21 that “based on that case, just for the record, if you were requesting self defense, based 22 on the facts that I know, I would not be giving self defense instructions.”3 (Lodg. No. 23 3, vol. 6 at 370.) Given the trial judge’s statement, counsel was reasonable in 24 refraining from arguing with the judge about the applicability of self defense 25 instructions to Petitioner’s case. See Strickland, 466 U.S. at 687. 26 “[A] defendant who–through his own wrongful conduct, such as initiating a 27 28 3 The trial judge cited People v. Szadziewicz, 161 Cal. App. 4th 823 (2008). - 11 - 13cv2708-H(DHB) 1 physical assault of committing a felony–has created circumstances under which his 2 adversary’s attack or pursuit is legally justified may not invoke unreasonable self 3 defense.” Szadziewicz, 161 Cal. App. 4th at 834 (internal citations omitted). 4 Moreover, Petitioner has not shown that even if the trial court agreed to give the 5 specific jury instructions on self defense the result of the proceedings would have been 6 different. See Strickland, 466 U.S. at 694. For the foregoing reasons, Petitioner has 7 failed to establish either that counsel committed errors or that counsel’s errors 8 prejudiced him. See id. Accordingly, he is not entitled to relief on these claims. 9 Petitioner also contends counsel should have objected to alleged misconduct by 10 the prosecutor during closing argument. Specifically, Petitioner claims the prosecutor 11 told the jury Petitioner only stopped assaulting Anguiano and Shaffer with the hatchets 12 because “others intervened to stop the attack.” (Doc. No. 1 at 11; Doc. No. 24 at 31.) 13 The prosecutor properly argued reasonable inferences from the testimony. Thus, trial 14 counsel was not ineffective for failing to object to the prosecutor’s statements. See 15 Strickland, 466 U.S. at 687. Accordingly, Petitioner is not entitled to relief on this 16 claim. 17 B. Ineffective Assistance of Appellate Counsel Claim 18 Petitioner also argues his appellate counsel was ineffective. Petitioner contends 19 his appellate counsel was ineffective for failing to argue that his trial counsel was 20 ineffective. (Doc. No. 1 at 6-7; Doc. No. 24 at 19-22, 26-27.) The Strickland test 21 applies to ineffective assistance of appellate counsel claims. Smith v. Robbins, 528 22 U.S. 259, 285 (2000). Petitioner must first show that his appellate counsel’s 23 performance fell below an objective standard of reasonableness. Strickland, 466 U.S. 24 at 688. He must also establish counsel’s errors prejudiced him. Id. at 694. To 25 establish prejudice, Petitioner must demonstrate that he would have prevailed on appeal 26 absent counsel’s errors. Smith, 528 U.S. at 285. Appellate counsel is not required to 27 raise frivolous or meritless claims on appeal. Jones v. Ryan, 691 F.3d 1093, 1101 (9th 28 Cir. 2012). None of the instances of trial counsel’s performance cited by Petitioner - 12 - 13cv2708-H(DHB) 1 amount to ineffective assistance of counsel. Thus, appellate counsel was not 2 ineffective for failing to raise them on appeal. See id. 3 C. Prosecutorial Misconduct Claim 4 Petitioner contends the prosecutor committed misconduct. (Doc. No. 1 at 12; 5 Doc. No. 24 at 32-33.) Specifically, Petitioner contends the prosecutor falsely argued 6 that a third party named Vinas intervened and stopped Petitioner’s attack on Anguiano. 7 (Id.) Petitioner contends that Vinas never testified he saw Petitioner attacking 8 Anguiano, only that there was a struggle, and that Petitioner stopped on his own free 9 will once the bedroom light came on. (Id.) 10 A prosecutor may argue reasonable inferences drawn from the evidence 11 presented at the trial. Darden v. Wainwright, 477 U.S. 168, 181-82 (1986). Moreover, 12 “it is not enough that the prosecutors’ remarks were undesirable or even universally 13 condemned.” Id. at 181. Rather, a prosecutor commits misconduct when his or her 14 actions “‘so infected the trial with unfairness as to make the resulting conviction a 15 denial of due process.’” Id. (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 16 (1974)). 17 The prosecutor’s argument accurately reflected Vinas’s testimony. Vinas 18 testified that he saw two men struggling and he forced Petitioner to drop the weapon 19 after pulling him out of the room. (Lodg. No. 3, vol. 5 at 239, 242-44.) Thus, the 20 prosecutor’s arguments that Vinas “intervene[d] to stop the attack” were reasonable. 21 (Lodg. No. 3, vol. 6 at 404.) As a result, there was no prosecutorial misconduct, and 22 Petitioner is not entitled to relief on this claim. 23 D. Jury Instruction Error Claim 24 Finally, Petitioner contends the trial court erred by failing to instruct the jury on 25 the defense of accident (CALCRIM 3404) and self defense (CALCRIM 3470). (Doc. 26 No. 1 at 14.) Respondent argues that the claim is procedurally defaulted and that the 27 facts of the case do not warrant either instruction. (Doc. No. 17-1 at 28-34.) 28 Generally, “a defendant is entitled to an instruction as to any recognized defense - 13 - 13cv2708-H(DHB) 1 for which there exists evidence sufficient for a reasonable jury to find in his favor.” 2 Mathews v. United States, 485 U.S. 58, 63 (1988) (citing Stevenson v. United States, 3 162 U.S. 313 (1896)). When determining whether error occurred, the Court examines 4 whether the error had a “substantial and injurious effect or influence in determining the 5 jury's verdict.” Brecht, 507 U.S. at 636-38; Bains v. Cambra, 204 F.3d 964, 971 n.2 6 (9th Cir. 2000). The error is harmless unless Petitioner can establish “actual 7 prejudice.” Brecht, 507 U.S. at 637. The Court looks to the overall instructions given 8 to the jury. Boyde v. California, 494 U.S. 370, 378 (1990) (quoting Cupp v. Naughten, 9 414 U.S. 141, 147 (1973)). 10 Petitioner is not entitled to relief on his claim that the trial court should have 11 instructed the jury on the defense of accident. The California Supreme Court has stated 12 that “assuming the jury received complete and accurate instructions on the requisite 13 mental element of the offense, the obligation of the trial court in each case to instruct 14 on accident extend[s] no further than to provide an appropriate pinpoint instruction 15 upon request by the defense.” People v. Anderson, 51 Cal. 4th 989, 998 (2011). In 16 Petitioner’s case, the jury was properly instructed that to convict him of assault with 17 a deadly weapon, they had to find, beyond a reasonable doubt, that he intentionally “did 18 an act with a deadly weapon . . . that by its nature would directly and probably result 19 in the application of force to a person,” and that he did the act willfully. (Lodg. No. 1, 20 vol. 1, part 2 at 163, 178-80.) 21 Petitioner was also not entitled to self defense instructions given the facts of his 22 case. The California Supreme Court has refused to apply the doctrine of imperfect self 23 defense in cases where a defendant’s “own wrongful conduct (for example, a physical 24 assault or commission of a felony) created the circumstances in which the adversary’s 25 attack is legally justified.” People v. Booker, 51 Cal. 4th 141, 182 (2011) (internal 26 citations omitted). Petitioner’s wrongful conduct of carrying two hatchets into a 27 darkened bedroom inside Vinas’s house to scare Von Der Heyde “created the 28 circumstances in which [Anguiano’s] attack [was] legally justified.” Id. - 14 - 13cv2708-H(DHB) 1 For the foregoing reasons, the denial of these claims was neither contrary to, nor 2 an unreasonable application of, clearly established Supreme Court law.4 Accordingly, 3 Petitioner is not entitled to relief as to these claims. 4 E. Request for an Evidentiary Hearing 5 Petitioner asks the Court to conduct an evidentiary hearing on his claims. (Doc. 6 No. 24 at 37.) Petitioner can only develop additional evidence in federal court if he 7 satisfies section 2254(d). Sully, 725 F.3d at 1075-76 (“[A]n evidentiary hearing is 8 pointless once the district court has determined that § 2254(d) precludes habeas 9 relief.”) (citing Pinholster, 131 S. Ct. at 1398). Petitioner has not shown that he is 10 entitled to relief under section 2254(d). Accordingly, the Court denies the request for 11 an evidentiary hearing. See Pinholster, 131 S. Ct. at 1398; see also Sully, 725 F.3d at 12 1075-76. 13 14 Conclusion For the foregoing reasons, the Court denies the petition for habeas corpus, 15 adopts the magistrate judge’s report and recommendation, and dismisses Kamala Harris 16 as Respondent. Additionally, the Court declines to issue a certificate of appealablity 17 as Petitioner has failed to make a substantial showing of the denial of a constitutional 18 right. 28 U.S.C. § 2253(c)(2). 19 IT IS SO ORDERED. 20 DATED: January 6, 2015 21 ________________________________ 22 MARILYN L. HUFF, District Judge UNITED STATES DISTRICT COURT 23 24 25 4 As the instructional claim fails on the merits, the Court need not reach 26 respondent’s argument of procedural default. Batchelor v. Cupp, 693 F.2d 859, 864 (9th Cir. 1982) (noting that where deciding the merits of a claim proves to be less 27 complicated and less time consuming than adjudicating the issue of procedural default, a court may exercise discretion in its management of the case to reject the claims on 28 their merits). - 15 - 13cv2708-H(DHB)
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