Merel v. Hedgpeth et al, No. 5:2010cv05077 - Document 78 (N.D. Cal. 2012)
Court Description: ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY. After a careful review of the record and pertinent law, the Court concludes that the Petition for a Writ of Habeas Corpus is DENIED. Further, a Certificate of Appealability is DENIED. The clerk shall terminate any pending motions, enter judgment in favor of Respondent, and close the file. Signed by Judge Edward J. Davila on 9/26/2012. (ecg, COURT STAFF) (Filed on 9/26/2012)
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Merel v. Hedgpeth et al Doc. 78 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 11 For the Northern District of California United States District Court 10 JOSE ANTONIO MEREL, Petitioner, 12 13 vs. 14 ANTHONY HEDGPETH, Warden, 15 Respondent. 16 ) ) ) ) ) ) ) ) ) ) ) ) No. C 10-05077 EJD (PR) ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY 17 18 Petitioner has filed a pro se Petition for a Writ of Habeas Corpus under 28 19 U.S.C. § 2254 challenging a judgment of conviction from Alameda County Superior 20 Court. For the reasons set forth below, the Petition for a Writ of Habeas Corpus is 21 DENIED. 22 PROCEDURAL BACKGROUND 23 On April 1, 2003, an information was filed, charging Petitioner, and co- 24 defendants Michael Magidson and Jason Cazares, with first degree murder. A jury 25 trial began on March 15, 2004, and ended in a mistrial on June 22, 2004, due to the 26 jury’s failure to reach a verdict. 27 In 2005, a second jury trial began, and Petitioner and Magidson were 28 Order Denying Petitioner for Writ of Habeas Corpus; Denying Certificate of Appealability G:\PRO-SE\SJ.EJD\HC.10\Merel05077_deny petition-coa.wpd Dockets.Justia.com 1 ultimately convicted of second degree murder. Pet. at 3. The jury found not true the 2 hate crime allegation. Id. The jury did not reach a verdict as to Cazares.1 The state 3 trial court sentenced Petitioner to a term of fifteen years to life in state prison. Id. at 4 4. 5 On May 13, 2009, the state appellate court affirmed the judgment. Resp. Ex. 6 6. On August 19, 2009, the California Supreme Court denied review. Resp. Ex. 8. 7 Petitioner filed this instant petition for a writ of habeas corpus on November 8 9, 2010. DISCUSSION 9 11 For the Northern District of California United States District Court 10 A. Factual Background The following facts are summarized from the opinion of the California Court 12 of Appeal. Resp. Ex. 6. The defendants – Petitioner, Magidson, and Cazares – 13 along with Jaron Chase Nabors,2 were friends who had discussed the possibility that 14 Lida Araujo, the 17-year old victim, was a man. The victim was described as being 15 pretty, flirtatious, and often acted in a sexually suggestive manner. During the 16 summer of 2002, the victim began hanging out at Petitioner’s house with Petitioner, 17 Magidson, Cazares, and Nabors. A few weeks before the victim’s death, Petitioner 18 and Magidson had engaged in oral and anal sex with the victim. 19 One night, in October 2002, Petitioner, Magidson, Cazares, and Nabors went 20 to a bar to have drinks. They returned to Petitioner’s house around 1:30 a.m. On the 21 way to the house, they talked about whether the victim would be at Petitioner’s 22 house, and someone suggested that if she was, they could ask her if she was a man 23 or a woman. The victim was at Petitioner’s house when they all arrived, and at some 24 25 26 1 Cazares subsequently pleaded no contest to voluntary manslaughter. Resp. Ex. 6 at 2, n.1. 2 27 28 Nabors was initially charged with murder and a hate crime allegation, however, he pleaded guilty pursuant to a plea agreement, to voluntary manslaughter, in exchange for his testimony against defendants. Resp. Ex. 6 at 1, n.1. Order Denying Petitioner for Writ of Habeas Corpus; Denying Certificate of Appealability G:\PRO-SE\SJ.EJD\HC.10\Merel05077_deny petition-coa.wpd 2 1 point during the night, Petitioner confronted the victim, asking her if she was a man 2 or a woman. The victim attempted to evade the question. Eventually, the group 3 discovered that the victim was anatomically male. 4 After the discovery, Magidson attempted to choke the victim several times, 5 and would not allow her to leave the house. Petitioner struck the victim on the top 6 of her head with a can of food, hard enough to dent the can. Petitioner also hit the 7 victim in the head with a frying pan, at which point, the victim fell to the floor. 8 Cazares and Nabors left the house to get shovels. When they returned, the victim 9 had blood on her face, but was alive and sitting on a couch. After some encouragement from Cazares and Nabors, Magidson hit the victim twice in the face 11 For the Northern District of California United States District Court 10 with a closed fist. After she dropped to the floor, he kneed her twice in the face with 12 a great deal of force. Magidson used a rope to tie the victim’s wrists and ankles and 13 placed her on a blanket. She appeared to be unconscious. Magidson, Nabors, and 14 Cazares carried the victim to the garage. Petitioner remained in the living room to 15 scrub the blood off the carpet. At some point, Magidson, Cazares, Nabors, and 16 Petitioner got into a truck, found an area off an unpaved road, and dug a hole. When 17 they finished digging, Magidson dragged the victim’s body out of the truck and into 18 the grave. All four men filled the grave with rocks and dirt. 19 At trial, an expert testified that the cause of death with asphyxia due to 20 strangulation, associated with blunt trauma to the head. There were two lacerations 21 on the upper forehead, with hemorrhaging inside the scalp. The blows were caused 22 by a hard, blunt object. 23 B. 24 Standard of Review This Court may entertain a petition for a writ of habeas corpus “in behalf of a 25 person in custody pursuant to the judgment of a State court only on the ground that 26 he is in custody in violation of the Constitution or laws or treaties of the United 27 States.” 28 U.S.C. § 2254(a). The writ may not be granted with respect to any 28 Order Denying Petitioner for Writ of Habeas Corpus; Denying Certificate of Appealability G:\PRO-SE\SJ.EJD\HC.10\Merel05077_deny petition-coa.wpd 3 1 claim that was adjudicated on the merits in state court unless the state court’s 2 adjudication of the claim: “(1) resulted in a decision that was contrary to, or 3 involved an unreasonable application of, clearly established Federal law, as 4 determined by the Supreme Court of the United States; or (2) resulted in a decision 5 that was based on an unreasonable determination of the facts in light of the evidence 6 presented in the State court proceeding.” 28 U.S.C. § 2254(d). 7 “Under the ‘contrary to’ clause, a federal habeas court may grant the writ if Court on a question of law or if the state court decides a case differently than [the] 10 Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 11 For the Northern District of California the state court arrives at a conclusion opposite to that reached by [the Supreme] 9 United States District Court 8 U.S. 362, 412–13 (2000). The only definitive source of clearly established federal 12 law under 28 U.S.C. § 2254(d) is in the holdings (as opposed to the dicta) of the 13 Supreme Court as of the time of the state court decision. Williams, 529 U.S. at 412; 14 Brewer v. Hall, 378 F.3d 952, 955 (9th Cir. 2004). While circuit law may be 15 “persuasive authority” for purposes of determining whether a state court decision is 16 an unreasonable application of Supreme Court precedent, only the Supreme Court’s 17 holdings are binding on the state courts and only those holdings need be 18 “reasonably” applied. Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir.), overruled 19 on other grounds by Lockyer v. Andrade, 538 U.S. 63 (2003). 20 “Under the ‘unreasonable application’ clause, a federal habeas court may 21 grant the writ if the state court identifies the correct governing legal principle from 22 [the Supreme Court’s] decisions but unreasonably applies that principle to the facts 23 of the prisoner’s case.” Williams, 529 U.S. at 413. “Under § 2254(d)(1)’s 24 ‘unreasonable application’ clause, . . . a federal habeas court may not issue the writ 25 simply because that court concludes in its independent judgment that the relevant 26 state-court decision applied clearly established federal law erroneously or 27 incorrectly.” Id. at 411. A federal habeas court making the “unreasonable 28 Order Denying Petitioner for Writ of Habeas Corpus; Denying Certificate of Appealability G:\PRO-SE\SJ.EJD\HC.10\Merel05077_deny petition-coa.wpd 4 1 application” inquiry should ask whether the state court’s application of clearly 2 established federal law was “objectively unreasonable.” Id. at 409. The federal 3 habeas court must presume correct any determination of a factual issue made by a 4 state court unless the petitioner rebuts the presumption of correctness by clear and 5 convincing evidence. 28 U.S.C. § 2254(e)(1). 6 The state court decision to which Section 2254(d) applies is the “last 7 reasoned decision” of the state court. See Ylst v. Nunnemaker, 501 U.S. 797, 803- 8 04 (1991). When there is no reasoned opinion from the highest state court 9 considering a petitioner’s claims, the court “looks through” to the last reasoned opinion. See id. at 805. 11 For the Northern District of California United States District Court 10 The Supreme Court has vigorously and repeatedly affirmed that under 12 AEDPA, there is a heightened level of deference a federal habeas court must give to 13 state court decisions. See Hardy v. Cross, 132 S. Ct. 490, 491 (2011) (per curiam); 14 Harrington v. Richter, 131 S. Ct. 770, 783-85 (2011); Premo v. Moore, 131 S. Ct. 15 733, 739-40 (2011); Felkner v. Jackson, 131 S. Ct. 1305 (2011) (per curiam). As the 16 Court explained: “[o]n federal habeas review, AEDPA ‘imposes a highly deferential 17 standard for evaluating state-court rulings’ and ‘demands that state-court decisions 18 be given the benefit of the doubt.’” Id. at 1307 (citation omitted). With these 19 principles in mind regarding the standard and limited scope of review in which this 20 Court may engage in federal habeas proceedings, the Court addresses Petitioner’s 21 claims. 22 C. Claims and Analysis 23 Petitioner claims that he was denied due process because the prosecutor failed 24 to move to dismiss the murder charges, and opposed Petitioner’s post-trial motion to 25 reduce the verdict to voluntary manslaughter even though the prosecutor viewed 26 Petitioner’s role in the crime as less culpable than the others. 27 In support of this claim, Petitioner relies on the prosecutor’s statements 28 Order Denying Petitioner for Writ of Habeas Corpus; Denying Certificate of Appealability G:\PRO-SE\SJ.EJD\HC.10\Merel05077_deny petition-coa.wpd 5 1 during opening and closing arguments. Petitioner argues that during the 2 prosecutor’s opening statement, he pointed out that Petitioner initially agreed to let 3 the victim leave the house, and urged her to go because “they are pissed off.” RT 4 58-59. During closing argument, the prosecutor repeatedly stated that he did not 5 believe all three defendants had the same level of culpability. 6 7 8 My theory in this case is and has always been that Defendant Magidson killed the decedent. My theory has always been and remains that Mr. Cazares, his participation as an aider and abettor, unambiguous that he had very little physical contact with the victim, but that he went to his house to retrieve the shovels for purposes of burying someone who was at that point not yet dead. 9 11 For the Northern District of California United States District Court 10 12 13 14 [Petitioner’s] liability flows from, I believe, primarily what happened with this can and pan. There was a threat that the evidence indicates was made earlier to, I believe, the effect of kill the bitch if it’s a man, or something like that. But I realize that [Petitioner] made efforts after that point in time to get the victim out of the house, and so the question is, I believe, for the jury in terms of his liability at the time he struck the victim with the can and pan, did he do so as an aider and abettor to the victim’s ultimate killer? And I believe that [defense counsel’s] theory in this case that his client is not guilty of homicide, but is at most guilty of a 245. 15 ... 16 17 18 19 20 21 22 23 So as I view these defendants and their liability relative to each other. To me, it’s just inappropriate, although I’m not obligated – my sense of justice and fair play is such that I believe that [Petitioner] is entitled to a 245 instruction, and frankly, more so than just my sense of justice towards what’s right for him, but the jury very well may find that he did not have the requisite mental state of an aider and abettor at the time he struck the victim with the pan and can. They may find he did so independent of the actions of other, and he should be criminal responsibility for that ability. And so that if they believe he was not an aider and abettor in the killing, he should nonetheless suffer the just and appropriate consequence, and that would result, if the jury had the option of finding him guilty, of the lesser. 24 ... 25 26 27 And I will tell you – I’ll tell you this: I see all – don’t see the defendants all the same way. This man here, [Petitioner], tell you right at the very beginning, I don’t see [Petitioner], whatever he is, I don’t see him as a killer, and that’s a question that you will be asked to determine when it comes to [Petitioner] is, whatever he 28 Order Denying Petitioner for Writ of Habeas Corpus; Denying Certificate of Appealability G:\PRO-SE\SJ.EJD\HC.10\Merel05077_deny petition-coa.wpd 6 2 did, when you figure out what he did, you’ll have to ask yourselves if what he did, he did in order to help, to assist in some fashion, to facilitate, to encourage, to aid the killers. 3 ... 4 I’m asking you to convict the killer of first degree murder. I’m asking you to convict his helper of first degree murder. But first and foremost, I’m asking you to convict him of murder. I think the evidence is overwhelming, supports first degree murder, but should you disagree about whether it’s first or second, if you all agree on murder, I’m asking you to convict him of murder. And I’m going to leave [Petitioner’s] fate in your hands. I’m going to suggest that you do what you think is right, that you look at the evidence, you look at the law, and you return the verdict that you feel is just and appropriate. 1 5 6 7 8 9 ... 11 For the Northern District of California United States District Court 10 12 13 14 So I ask you to base your decision on the evidence, and as I requested in the beginning, I request now on behalf of the People, I ask you to find Mr. Magidson guilty of first degree murder. I ask you find Mr. Cazares guilty of first degree murder. And I leave it up to you to do what you believe is right as to [Petitioner.] Take a look at the evidence, take a look at the law, and return the verdict that you believe is just and appropriate in [Petitioner’s] case. Look into your – look into your hearts and decide what is right. You know what is right. 15 RT 4851-52, 4863-64, 4890, 5164, 5167. 16 The state appellate court rejected this claim, explaining: 17 18 19 20 21 22 23 24 25 26 27 [Petitioner] contends he was deprived of due process because the prosecutor did not ask for a murder verdict against him yet failed to dismiss the murder charge. He points out that although the prosecutor argued that he should be treated differently from the other participants in the killing, he in fact received harsher treatment than two of them – Nabors and Cazares, who received prison terms of 11 years and 6 years respectively after pleading to voluntary manslaughter. [Petitioner] complains that the prosecutor “allowed” him to stand convicted of the same offense as Magidson and to receive a harsher sentence than Cazares, whom the prosecutor had indicated he believed were more culpable than Merel. [Petitioner] points out that the prosecutor’s duty is not simply to obtain a conviction, but to act as a guardian of the defendant’s constitutional rights and that the prosecutor has a duty not to bring or maintain charges that are not supported by probable cause. (People v. Trevino (1985) 39 Cal.3d 667, 681, disapproved on another ground in People v. Johnson (1989) 47 Cal.3d 1194, 1221; see also People v. Hill (1998) 17 Cal.4th 800, 820). Here, of course, we have already concluded that there was 28 Order Denying Petitioner for Writ of Habeas Corpus; Denying Certificate of Appealability G:\PRO-SE\SJ.EJD\HC.10\Merel05077_deny petition-coa.wpd 7 1 2 3 4 5 6 7 8 9 We also reject [Petitioner]’s contention that the prosecutor should have taken the option of a murder verdict out of the jury’s hands because he “invited” the jury to return a lesser verdict. As the portions of the closing arguments discussed above show, it is certainly correct that the prosecutor indicated that he believed [Petitioner]’s culpability was different than that of Magidson and Cazares. However, he did not tell the jury he did not believe the evidence would support a murder verdict, instead stating that he was leaving to the jury the question of whether [Petitioner] intended by his actions to aid or encourage Magidson and Cazares. If he aided and abetted the commission of a crime, as the jury was instructed, he would also be guilty of that crime. (See Joiner, supra, 84 Cal.App.4th at pp. 966-967.) The fact that the prosecutor indicated that the jury might also conclude [Petitioner] was guilty only of assault with a deadly weapon does not mean he believed the evidence would not support a conviction of murder. 11 For the Northern District of California United States District Court 10 substantial evidence to support the verdict of second degree murder against [Petitioner]. In the circumstances, we cannot conclude that the charge was not supported by probable cause. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 [Petitioner]’s reliance on People v. Alverson (1964) 60 Cal.2d 803 (Alverson), does not persuade us otherwise. In Alverson, three defendants were tried for burglary. One of them, Williamson, testified that he had driven the getaway car, but that he did not know of the burglary until the other two defendants got into the car, told him they had burglarized a store, and advised him to drive away. (Id. at p. 804.) At trial, the prosecutor asked the jury to believe Williamson, to acquit him, and to convict the other two defendants. In doing so, he told the jury that he believed Williamson was telling the truth and did not think he was guilty of the charge, and said that his duty as a prosecutor was not to convict innocent people, but to convict the guilty. (Id. at pp. 805-806.) The jury acquitted Williamson and found his codefendants guilty. (Id. at p. 804.) One of the codefendants appealed, and our Supreme Court reversed. (Id. at pp. 804, 810.) The court concluded that the prosecutor’s statement that he believed Williamson was innocent and did not want to convict an innocent man amounted to a statement that he personally believed the codefendants were guilty, and that such a statement constituted reversible misconduct. (Id. at p. 808.) The court stated that the prosecutor could have used other procedures once he became convinced of Williamson’s innocence, such as moving for a mistrial or for dismissal of the case against Williamson. (Id. at pp. 806-807.) This precedent, however, is not controlling here. The court in Alverson concluded that the statements in question were unfair to the other defendants, not to Williamson. More importantly, unlike the prosecutor in Alverson, the prosecutor here did not proclaim any belief that Petitioner was innocent of murder and should be acquitted. 26 27 Finally, we reject [Petitioner]’s contention that the prosecutor improperly “allowed” the jury to convict him of the same offense as Magidson and “allowed” the court to impose the 28 Order Denying Petitioner for Writ of Habeas Corpus; Denying Certificate of Appealability G:\PRO-SE\SJ.EJD\HC.10\Merel05077_deny petition-coa.wpd 8 1 2 3 4 5 6 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 same sentence on the two men. The prosecutor asked the jury to find Magidson and Cazares guilty of first degree murder, but the jury declined to do so, finding Magidson as well as [Petitioner] guilty of second degree murder and failing to reach a verdict as to Cazares. As we have discussed, the evidence supported the verdict against [Petitioner]. After two mistrials as to Cazares, the district attorney accepted his plea of voluntary manslaughter and agreed to the midterm sentence. (§ 193, subd. (a).) The trial court imposed the sentence required by law on [Petitioner] and Magidson. (§ 190, subd. (a).) We cannot infer from the prosecutor’s partial success that he violated his professional responsibilities or that [Petitioner] was deprived of due process, and we certainly cannot blame him for the sentence. [Petitioner] argues, however, that the prosecutor’s failure to concur with his posttrial request to reduce the verdict to voluntary manslaughter deprived him of his due process right to a fair trial. According to [Petitioner], the prosecutor had an ethical duty to concur in his motion, particularly after allowing Cazares to plead no contest to voluntary manslaughter with an agreed-upon sentence of six years. He relies upon People v. Sherrick (1993) 19 Cal.App.4th 657, 660, which states: “‘To the extent the prosecutor becomes involved in the sentencing process, he or she should seek to assure that a fair and informed judgment is made on the sentence and to avoid unfair sentence disparities.’” We see no violation of this rule here. Whatever the prosecutor’s view of Cazares’s guilt, the jury was unable to reach agreement on the issue. We see no impropriety in the district attorney’s recognizing the difficulty in obtaining a conviction of Cazares and agreeing to a plea bargain. Nor do we see any impropriety in the prosecutor accepting the jury’s verdict against [Petitioner], one that was supported by the evidence. 17 Resp. Ex. 6 at 25-28. 18 Prosecutorial misconduct is cognizable in federal habeas corpus. The 19 appropriate standard of review is the narrow one of due process and not the broad 20 exercise of supervisory power. Darden v. Wainwright, 477 U.S. 168, 181 (1986). A 21 defendant’s due process rights are violated when a prosecutor’s misconduct renders 22 a trial “fundamentally unfair.” Id.; Smith v. Phillips, 455 U.S. 209, 219 (1982) (“the 23 touchstone of due process analysis in cases of alleged prosecutorial misconduct is 24 the fairness of the trial, not the culpability of the prosecutor”). 25 It is important to remember that “[t]his is not a case in which the State has 26 denied a defendant the benefit of a specific provision of the Bill of Rights, such as 27 the right to counsel, or in which the prosecutor’s remarks so prejudiced a specific 28 Order Denying Petitioner for Writ of Habeas Corpus; Denying Certificate of Appealability G:\PRO-SE\SJ.EJD\HC.10\Merel05077_deny petition-coa.wpd 9 1 right, such as the privilege against compulsory self-incrimination, as to amount to a 2 denial of that right.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) 3 (prosecutorial misconduct claim when prosecutor commented about respondent’s 4 expectations at trial) (citations omitted). “When specific guarantees of the Bill of 5 Rights are involved, this Court has taken special care to assure that prosecutorial 6 conduct in no way impermissibly infringes them.” Id. Here, however, the claim is 7 only that a prosecutor’s failure to dismiss the murder charges or support Petitioner’s 8 motion to reduce the conviction so infected the trial with unfairness as to make the 9 resulting conviction a denial of due process. See Ortiz v. Stewart, 149 F.3d 923, 934 11 For the Northern District of California United States District Court 10 (9th Cir. 1998). There is no evidence that the prosecutor’s failure to dismiss the murder 12 charges or support Petitioner’s motion for a reduction of his conviction resulted in 13 an unfair trial. Petitioner does not challenge the state appellate court’s conclusion 14 that there was sufficient evidence to support his conviction of second degree murder. 15 During closing argument, the prosecutor expressed his personal belief regarding the 16 culpability of Petitioner, but also made it clear that the jury had the ultimate fact- 17 finding duty to apply the law in order to determine whether Petitioner had the 18 requisite intent sufficient to sustain a murder conviction. In other words, despite the 19 prosecutor’s personal belief regarding Petitioner’s level of culpability, the jury 20 rejected that belief, and found sufficient evidence to convict Petitioner of second 21 degree murder. In light of the record, there is no indication that the failure to 22 dismiss the murder charges, or to support Petitioner’s motion to reduce his 23 conviction, resulted in an unfair trial or denied Petitioner his right to due process. 24 Moreover, this Court has no authority to review questions of state 25 prosecutorial discretion unless Petitioner has made a prima facie case that the 26 prosecutorial decision was constitutionally impermissible. See United States v. 27 Diaz, 961 F.2d 1417, 1420 (9th Cir. 1992). To establish a prima facie case of 28 Order Denying Petitioner for Writ of Habeas Corpus; Denying Certificate of Appealability G:\PRO-SE\SJ.EJD\HC.10\Merel05077_deny petition-coa.wpd 10 1 selective prosecution, the claimant must show that the prosecutorial policy (1) had a 2 discriminatory effect and (2) was motivated by a discriminatory purpose. See 3 United States v. Armstrong, 517 U.S. 456, 465 (1996). Courts presume that 4 prosecutors have properly discharged their official duties. See id. at 464. Here, 5 Petitioner makes no such showing that the prosecutor’s failure to dismiss the murder 6 charge or support his motion for reduction in the conviction was motivated by any 7 discriminatory purpose. Cf. United States v. Redondo-Lemos, 955 F.2d 1296, 1300 8 (9th Cir. 1992) (recognizing that while a completely arbitrary system of deciding 9 whom to prosecute may violate due process, in the absence of discriminatory motive 11 For the Northern District of California United States District Court 10 and effect, such a violation has no judicial remedy). Finally, to the extent Petitioner alleges that the prosecutor failed to discharge 12 an ethical duty, the Court recognizes that a person in custody pursuant to the 13 judgment of a state court can obtain a federal writ of habeas corpus only on the 14 ground that he is in custody in violation of the Constitution or laws or treaties of the 15 United States. 28 U.S.C. § 2254(a). In other words, “it is only noncompliance with 16 federal law that renders a State’s criminal judgment susceptible to collateral attack 17 in the federal courts.” Wilson v. Corcoran, 131 S. Ct. 13, 16 (2010). The Supreme 18 Court has repeatedly held that federal habeas writ is unavailable for violations of 19 state law or for alleged error in the interpretation or application of state law. See 20 Swarthout v. Cooke, 131 S. Ct. 859, 861-62 (2011). It is unavailable merely 21 because “something in the state proceedings was contrary to general notions of 22 fairness or violated some federal procedural right unless the Constitution or other 23 federal law specifically protects against the alleged unfairness or guarantees the 24 procedural right in state court.” Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 25 1985). Even assuming that the prosecutor failed to uphold a state ethical duty, this 26 failure is insufficient to warrant federal habeas relief. 27 Thus, this Court concludes that Petitioner has not demonstrated that the state 28 Order Denying Petitioner for Writ of Habeas Corpus; Denying Certificate of Appealability G:\PRO-SE\SJ.EJD\HC.10\Merel05077_deny petition-coa.wpd 11 1 court decision was contrary to, or an unreasonable application of, clearly established 2 Supreme Court law. CONCLUSION 3 4 5 6 After a careful review of the record and pertinent law, the Court concludes that the Petition for a Writ of Habeas Corpus is DENIED. Further, a Certificate of Appealability is DENIED. See Rule 11(a) of the 7 Rules Governing Section 2254 Cases. Petitioner has not made “a substantial 8 showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Nor has 9 Petitioner demonstrated that “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 11 For the Northern District of California United States District Court 10 529 U.S. 473, 484 (2000). Petitioner may not appeal the denial of a Certificate of 12 Appealability in this Court but may seek a certificate from the Court of Appeals 13 under Rule 22 of the Federal Rules of Appellate Procedure. See Rule 11(a) of the 14 Rules Governing Section 2254 Cases. 15 The clerk shall terminate any pending motions, enter judgment in favor of 16 Respondent, and close the file. 17 SO ORDERED. 18 19 20 DATED: 9/25/2012 EDWARD J. DAVILA United States District Judge 21 22 23 24 25 26 27 28 Order Denying Petitioner for Writ of Habeas Corpus; Denying Certificate of Appealability G:\PRO-SE\SJ.EJD\HC.10\Merel05077_deny petition-coa.wpd 12 1 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 2 3 JOSE ANTONIO MEREL, 4 Case Number: CV10-05077 EJD Petitioner, 5 CERTIFICATE OF SERVICE v. 6 ANTHONY HEDGPETH, 7 Respondent. 8 9 11 For the Northern District of California United States District Court 10 12 / I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. 9/26/2012 That on ___________________, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 13 14 17 Jose Antonio Merel F 18721 Salinas Valley State Prison Post Office Box 705 Soledad, CA 93960-1050 18 9/26/2012 Dated: ___________________ 15 16 19 20 21 22 23 24 25 26 27 28 Richard W. Wieking, Clerk /s/ By: Elizabeth Garcia, Deputy Clerk
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