Hernandez v. Woodford, No. 3:2005cv02093 - Document 34 (N.D. Cal. 2011)

Court Description: MEMORANDUM AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; Signed by Judge Marilyn Hall Patel on 5/18/2011. (awb, COURT STAFF) (Filed on 5/19/2011)
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Hernandez v. Woodford Doc. 34 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 No. C 05-02093 MHP PEDRO HERNANDEZ, 8 Petitioner, MEMORANDUM & ORDER 9 v. Re: Petition for Writ of Habeas Corpus 11 For the Northern District of California United States District Court 10 JEANNE WOODFORD, Director of the California Department of Corrections, 12 Respondent. / 13 14 15 Pedro Hernandez, a prisoner currently in custody of the California Department of 16 Corrections and Rehabilitation, filed this petition for a writ of habeas corpus on May 20, 2005, 17 seeking relief pursuant to 28 U.S.C. § 2254 on the basis of insufficient evidence to support his 18 conviction and ineffective assistance of counsel. Hernandez’s petition is now before the court for 19 consideration on the merits. Having considered the parties arguments, the court now enters the 20 following memorandum and order. 21 BACKGROUND 22 On March 27, 2003, Hernandez was convicted after a bench trial on charges of second degree 23 murder and attempted murder under California Penal Code §§ 187, 664. These convictions were 24 enhanced by findings that the crimes were committed for the benefit of a gang and that Hernandez 25 personally used a firearm. Docket No. 21 (Exhibits re Answer to Order to Show Cause) (“Ans.”), 26 Exh. 4 (State Court Reporter’s Transcript) at 1253. On May 15, 2003, Hernandez was sentenced to 27 50 years to life . Id. at 1509. 28 Dockets.Justia.com imperfect self-defense. Hernandez argued that he had a sincere, if not reasonable, belief that the 3 victim was about to attack based on factual allegations including, but not limited to, (1) that the 4 victim, a member of the Sureno gang, and Hernandez, a member of the Norteno gang, exchanged 5 their rivaling gang’s verbal and hand signals, (2) that the victim had made a motion as if reaching for 6 something under the car seat, and (3) that the victim had opened the car door. Id. at 1254. The 7 judge, acting as the trier of fact, did not make any findings as to the first point, the exchange of hand 8 signals, but found that the evidence supported neither the second nor third alleged fact in the 9 narrative. Id. at 1254-55. The judge found that the driver of the car attempted to flee after the first 10 shot was fired. Id. at 1255. The judge’s other findings relevant to the assertion of self-defense were 11 For the Northern District of California At trial, Hernandez raised the affirmative defenses of self-defense and, in the alternative, 2 United States District Court 1 that Hernandez was armed in anticipation of “any possible confrontation,” that Hernandez had 12 significant consciousness of guilt, and that Hernandez’s complete denial of involvement in the 13 murders when first contacted by police undermined Hernandez’s credibility. Id. Citing CALJIC 8, 14 et seq, 5.50-5.56, the judge rejected the theory of self-defense. Id. at 1254. 15 On March 26, 2004, the California Court of Appeal determined that the trial court had erred 16 by imposing the gang enhancement, but affirmed the convictions for second degree murder and 17 attempted murder, as well as the firearm enhancement. People v. Hernandez, No. H026017, 2004 18 WL 632943 at *2-3 (Cal. Ct. App. Mar. 26, 2004) (unpublished opinion). On remand for 19 sentencing, Hernandez’s 50-year term was reduced to 40 years. Id. 20 Hernandez filed the first petition for a writ of habeas corpus with the Monterey County 21 Superior Court, challenging his conviction on the basis of insufficiency of evidence and ineffective 22 assistance of counsel. Ans., Exh. 9 (Denial of Petition for Writ of Habeas Corpus, HC 05059, 23 Monterey County Superior Court, July 6, 2005) at 1. The Monterey County Superior Court rejected 24 the petition on July 6, 2005. Id. at 4. The court held that the insufficiency of evidence claim was 25 procedurally barred due to Hernandez’s failure to raise it on direct appeal. Id. The claim of 26 ineffective assistance of counsel was based on the trial counsel’s decision not to frame self-defense 27 in terms of the antecedent assault rule, which allows a defendant who has been assaulted by the 28 2 1 victim in the past to take harsher and quicker measures in self-defense, or to present evidence that 2 Hernandez suffered from “traumatized child syndrome.” Id. at 2. With respect to the claim of 3 ineffective assistance of counsel based on the antecedent assault doctrine, the court held that the trial 4 counsel’s performance had fallen within professional norms and that the defendant had suffered no 5 prejudice. Id. at 4. The court mentioned the claim based on “traumatized child syndrome” but did 6 not analyze it independently of the claim based on antecedent assault before rejecting the petition. 7 The subsequent petition was denied without comment by the California Court of Appeal on 8 December 7, 2005. Ans., Exh. 11 (Denial of Petition for Writ of Habeas Corpus, No. H029496) at 1. 9 The California Supreme Court denied the petition without comment on November 20, 2006. Ans., 11 For the Northern District of California United States District Court 10 Exh. 13 (Denial of Petition for Writ of Habeas Corpus, No. S142543) at 1. On May 20, 2005, Hernandez filed his petition for a writ of habeas corpus with this court. 12 Docket No. 1 (Pet.) at 1. On June 18, 2008, the court issued an order to show cause, Docket No. 15 13 (Order to Show Cause) at 1, and the response was filed on March 24, 2010, Docket No. 20. On 14 August 23, 2010, Hernandez filed the traverse. Docket No. 32 (Traverse) at 1. 15 16 17 LEGAL STANDARD The court analyzes state habeas corpus claims under the Antiterrorism and Effective Death 18 Penalty Act of 1996 (“AEDPA”). 28 U.S.C. § 2254. Under AEDPA, the court may entertain a 19 petition for writ of habeas corpus “on behalf of a person in custody pursuant to the judgment of a 20 state court only on the ground that he is in custody in violation of the Constitution or laws or treaties 21 of the United States.” 28 U.S.C. § 2254(a). The petition may not be granted with respect to any 22 claim that was adjudicated on the merits in state court unless the state court's adjudication of the 23 claim resulted in a decision that was: 1) “contrary to, or involved an unreasonable application of, 24 clearly established Federal law, as determined by the Supreme Court of the United States;” or 2) 25 “based on an unreasonable determination of the facts in light of the evidence presented in the State 26 court proceeding.” 28 U.S.C. § 2254(d). 27 28 3 1 DISCUSSION 2 The petition for a writ of habeas corpus raises two distinct issues. First, the petition asserts 3 that there is insufficient evidence to support the trial court’s rejection of Hernandez’s self-defense 4 theories. Second, the petition alleges ineffective assistance of counsel based on the failure to raise 5 legal arguments on the antecedent assault rule and to frame the case in terms of “traumatized child 6 syndrome.” 7 I. 8 9 Insufficiency of the Evidence California state law requires that claims of insufficiency of evidence be brought only on direct appeal. In re Lindley, 29 Cal. 2d 709, 723 (1945). Where a state court’s decision rests on an independent and adequate state law basis, federal courts may not provide a remedy in habeas corpus. 11 For the Northern District of California United States District Court 10 Coleman v. Thompson, 501 U.S. 722, 750 (1991). California law’s prohibition against raising 12 insufficiency of evidence claims in habeas serves as an independent and adequate basis for a 13 decision. Carter v. Giurbino, 385 F.3d 1194, 1198 (9th Cir. 2004) (holding that the procedural bar 14 is independent because it “is not intertwined with federal substantive or procedural law” and 15 adequate because the rule is “‘firmly established and regularly followed’ by the state court at the 16 time of the petitioner's procedural default”). 17 Hernandez attempts to circumvent the decision in Carter—binding upon this court—that the 18 Lindley bar is an independent and adequate state law basis by pointing to a purported exception to 19 the Lindley rule mentioned by the California Supreme Court in In re Giannini, 69 Cal. 2d 563 20 (1969). See Traverse at 21-23. In Giannini, the court observed in a footnote that “[a]lthough 21 numerous cases have held that sufficiency of the evidence to support a conviction is not a proper 22 issue on habeas corpus . . . the United States Supreme Court has declared that conviction of a crime 23 without any evidence in the record to support the accused’s guilt constitutes a denial of due 24 process.” Id. at 577 n.11. The court concluded that habeas relief was available because petitioners 25 were convicted without evidence of “a crucial element in the proof of guilt,” in violation of due 26 process. Id. Even were Giannini a sufficient basis for side-stepping Carter, the court would deny 27 the relief Hernandez requests. 28 4 1 Insufficiency of evidence is cognizable in habeas under the Due Process Clause, regardless 2 of state law, whenever an entire essential element of a crime is unsupported by evidence. See e.g., 3 Garner v. Louisiana, 368 U.S. 157, 173-74 (1961) (overturning conviction due to absence of 4 evidence of disturbance of the peace other than defendant’s conduct of taking a seat at a whites only 5 lunch counter); Thompson v. City of Louisville, 362 U.S. 199, 204 (1960) (overturning convictions 6 due to lack of any evidence to support “offensive conduct,” an element of disturbing the peace, or 7 any evidence to support the “sleep, lie, loaf, or trespass” element of loitering, of which the defendant 8 was paradoxically also convicted). Hernandez does not point to any element of second-degree or 9 attempted murder which the state was unable to support. Instead, Hernandez argues that the trial court was unable to adequately support the rejection of his affirmative defenses. At least one Court 11 For the Northern District of California United States District Court 10 of Appeals, however, has explicitly held to the contrary, stating that due process is not implicated by 12 mere disbelief of a defendant’s proffered narrative or argument. Caldwell v. Russell, 181 F.3d 731, 13 740 (6th Cir. 1999) (“[T]he due process ‘sufficient evidence’ guarantee does not implicate 14 affirmative defenses because proof supportive of an affirmative defense cannot detract from proof 15 beyond a reasonable doubt that the accused had committed the requisite elements of the crime.”) 16 superceded on other grounds by 28 U.S.C. § 2254. Caldwell has been cited with approval by the 17 Ninth Circuit, albeit in an unpublished disposition. See Byers v. Mahoney, 203 F.3d 830, at *2 (9th 18 Cir. 1999) (unpublished). 19 record, for rejecting the proffered affirmative defenses. See Exh. 4 at 1253-55. 20 Regardless, the trial court provided multiple reasons, supported by the The decision of the Monterey County Superior Court refusing to hear the claims of 21 insufficiency of the evidence in a habeas petition rests on independent and adequate state law 22 grounds. The state court’s findings of fact against the defendant do not give rise to a fundamental 23 miscarriage of justice. 24 II. 25 Ineffective Assistance of Counsel Claims of ineffective assistance of counsel are examined under the standard set forth in 26 Strickland v. Washington, 466 U.S. 668, 687 (1984). In order to prevail on an ineffectiveness of 27 counsel claim, Hernandez must meet the requirements of both prongs of the Strickland test. 28 5 1 First, Hernandez must establish that his trial counsel’s performance fell below an “objective standard 2 of reasonableness” under prevailing professional norms. Id. at 687-88. The relevant inquiry is not 3 what defense counsel could have done, but rather whether the choices made by defense counsel were 4 reasonable in light of what was known at the time. Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th 5 Cir. 1998). Judicial scrutiny of counsel’s performance must be highly deferential, and a court must 6 indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable 7 professional assistance. Strickland, 466 U.S. at 689. Secondly, a petitioner must establish that he 8 was prejudiced by counsel’s deficient performance, by showing that “there is a reasonable 9 probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. Review is “doubly deferential,” because the initial state habeas review 11 For the Northern District of California United States District Court 10 under Strickland defers to any reasonable decisions made by the attorney and then federal habeas 12 review defers again to any reasonable determinations by the state court regarding the attorney’s 13 conduct. Yarborough v. Gentry, 540 U.S. 1, 6 (2003) (per curiam). 14 Hernandez asserts that the Monterey County Superior Court unreasonably applied Strickland 15 in rejecting his claim of ineffective assistance of counsel. Hernandez states that his trial counsel 16 ought to have presented argument emphasizing the antecedent assault doctrine of self defense and 17 “traumatized child syndrome” as a part of his defense. Hernandez’s argument attacks the 18 reasonableness of the Monterey County Superior Court’s decision on both of the Strickland prongs. 19 a. 20 Hernandez asserts that counsel fell below established professional norms by failing to raise Antecedent Assault 21 the antecedent assault theory in closing argument. California’s antecedent assault rule is found in 22 CALJIC 5.50.1, which instructs a jury to consider allowing the defendant more leeway in taking 23 quicker and harsher defensive measures if the jury finds that “on a prior occasion the alleged victim 24 threatened or assaulted or participated in an assault or threat of physical harm upon the defendant.” 25 A defendant is entitled to this instruction even when the threats are by a third party, as long as the 26 jury could find those threats were attributable to the victim as well. See e.g., People v. Minifie, 12 27 Cal. 4th 1055, 1067 (1996) (addressing the issues of admissibility of evidence of antecedent assaults 28 6 1 and applicability of the doctrine in a case where the victim’s associates had killed a defendant’s 2 friend and told defendant he would be “next”). Hernandez argues that the antecedent assault rule 3 should apply in this case because of the continuous violent conflict between the rival Norteno and 4 Sureno gangs. submitted to this court, which suggests that Hernandez had been personally assaulted or threatened 7 by the victims personally or by the Sureno gang generally. Hernandez relies exclusively on 8 evidence that the neighborhood is a flashpoint in the wider war between the Sureno and Norteno 9 street gangs. Hernandez points to no case in which the fact that the defendant and the victim were 10 merely members in antagonistic street gangs, without any prior contact with one another directly or 11 For the Northern District of California Hernandez points to no evidence, either in the extant record or through declarations 6 United States District Court 5 through intermediaries, served as a valid predicate for the jury to receive this instruction.1 12 The Monterey County Superior Court’s held that trial counsel’s performance was not 13 deficient because “although trial counsel did not specifically refer to the ‘antecedent assault’ theory, 14 he clearly argued that Hernandez’s actions should be viewed through the eyes of someone growing 15 up in a gang-infested neighborhood.” Ans., Exh. 9 at 3. Hernandez’s petition acknowledges that, 16 during cross-examination testimony developed by his trial attorney, one of the police witnesses for 17 the prosecution “adequately framed petitioner’s state of mind” with respect to the apprehension of 18 imminent violence during an exchange of gang signs. Pet. at 46-47. Although Hernandez’s trial 19 counsel could have focused his closing on the antecedent assault instruction, arguing that it should 20 be applicable in cases of general gang enmity, Strickland does not require that he do so. The United 21 States Supreme Court has noted that “deference to counsel’s tactical decision in his closing 22 presentation is particularly important because of the broad range of legitimate defense strategy at 23 that stage.” Yarborough, 540 U.S. at 5. In this case, as the Monterey County Superior Court 24 correctly points out, trial counsel chose to pursue a viable alternative strategy. 25 This court finds no compelling flaw in the state court’s determination that counsel exercised 26 reasonable professional judgment by pursuing the “totality of circumstances” approach from 27 CALJIC 5.50 rather than the more specific antecedent assault rule from CALJIC 5.50.1. 28 7 1 b. “Traumatized Child Syndrome” 2 Second, Hernandez alleges that counsel failed to investigate the possibility that he was 3 afflicted with “traumatized child syndrome” by virtue of the long history of brutal gang violence on 4 Kilbreth Street. 5 The Monterey County Superior Court took notice that Hernandez made the argument, but This court will treat the opinion by the Monterey County Superior Court as having given no reason 8 for its denial of the writ with respect to the merits of the claim based on “traumatized child 9 syndrome.” Accordingly, this court will “perform an independent review of the record to ascertain 10 whether the state court decision was objectively reasonable.” Reynoso v. Giurbino, 462 F.3d 1099, 11 For the Northern District of California treated it only as part of the ineffective assistance of counsel claims based on self-defense generally. 7 United States District Court 6 1109 (9th Cir. 2006). 12 Hernandez argues that his trial counsel should have introduced evidence that he suffered 13 from “traumatized child syndrome.” However, Hernandez has not introduced any evidence that he 14 in fact suffered from “traumatized child syndrome.” Without any evidence on the extant record or 15 declarations by psychological experts, Hernandez’s assertion is speculative and conclusory. 16 “Conclusory allegations which are not supported by a statement of specific facts do not warrant 17 habeas relief.” James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994). In the absence of any evidence which 18 would tend to cast trial counsel’s omission as unreasonable, Hernandez can not satisfy the first prong 19 of the Strickland test and is not entitled to habeas relief for this claim of ineffective assistance of 20 counsel.2 21 22 CONCLUSION 23 Hernandez’s petition for a writ of habeas corpus is DENIED. 24 IT IS SO ORDERED. 25 Dated: May 18, 2011 MARILYN HALL PATEL United States District Court Judge Northern District of California 26 27 28 8 1 2 3 ENDNOTES 1.There is no indication in the record that any member of the Sureno gang was even aware of Hernandez’s existence until the shooting, much less any indication that any Sureno had threatened Hernandez personally. Furthermore, Hernandez’s own arguments that he was wearing neutral colors and a marginal figure in the Norteno gang would seem to support the proposition that he was not a specific target of interest to the Sureno organization. 4 5 6 7 2.Addressing the second prong of the Strickland test, the state court also held that Hernandez suffered no prejudice as a result of his counsel’s decision. Ans., Denial of Pet. Monterey County Superior Court, at 4. In order to show prejudice, the petitioner must show that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. In the absence of any “unprofessional errors,” there was no need for the state court to address the question of prejudice. 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9