(HC)Hernandez v. Godwin ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANGEL HERNAN HERNANDEZ, No. 1:21-cv-01124-JLT-SKO (HC) 12 Petitioner, FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT OF 13 v. HABEAS CORPUS 14 RON GODWIN, Warden, [THIRTY DAY OBJECTION DEADLINE] 15 Respondent. 16 17 Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for 18 writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is currently in state prison serving a 19 sentence of 35 years-to-life pursuant to a judgment of the Kings County Superior Court. The 20 habeas petition presents five claims challenging the conviction. As discussed below, the Court 21 finds the claims to be without merit and recommends the petition be DENIED. 22 I. PROCEDURAL HISTORY 23 On March 2, 2016, a Kings County jury found Petitioner guilty of conspiracy to commit 24 assault with a deadly weapon upon a custodial officer (Cal. Penal Code §§ 182(a)(1), 245.3). 25 (Doc. 16-20 at 3.1) The jury found true the allegations that Petitioner committed the offense for 26 the benefit of a criminal street gang (Cal. Penal Code § 186.22(b)(1-5)) and that he had suffered 27 three prior felony convictions within the meaning of California’s “Three Strikes” law (Cal. Penal 28 1 Unless otherwise noted, references are to ECF pagination. 1 Code §§ 667(b)-(i), 1170.12(a)-(d)(1)). (Doc. 16-20 at 3.) On July 19, 2016, the trial court 2 sentenced Petitioner to a term of 40 years-to-life in state prison. (Doc. 16-20 at 3.) 3 Petitioner appealed to the California Court of Appeal, Fifth Appellate District (“Fifth 4 DCA”). On May 25, 2018, the Fifth DCA struck the five-year gang enhancement and amended 5 the judgment accordingly, but otherwise affirmed the judgment. (Doc. 16-20 at 1-4.) Petitioner 6 did not petition for review in the California Supreme Court. 7 Thereafter, Petitioner filed numerous petitions for writ of habeas corpus in the state courts. 8 (Docs. 16-20 to 16-34.) The petitions were all denied. 9 On July 26, 2021, Petitioner filed a petition for writ of habeas corpus in this Court. (Doc. 10 1.) Respondent filed an answer on December 9, 2021. (Doc. 15.) On January 20, 2022, Petitioner 11 filed a traverse to Respondent’s answer. (Doc. 18.) 12 II. FACTUAL BACKGROUND2 13 On April 29, 2014, deputies with the Kings County Sheriff’s Department initiated an 14 investigation after an inmate, Matthew Barrera, mentioned, while being transported back from 15 court, that he did not want to do time for attacking a deputy. Deputies questioned Barrera 16 regarding his comments. Barrera stated that there were “shanks” in the B4 Pod and he did not 17 want to “move on a deputy” after being ordered to do so. He stated that another inmate, James 18 Varela, would be able to provide more information. 19 Deputies later spoke to Varela who informed them that Petitioner had ordered 20 inmates Anthony Spalding, Matthew Barrera, Paul Campos, and Varela to “hit” Deputy 21 Luis Torres, the victim, on April 20, 2014, inside the Kings County Jail. Varela explained 22 that the hit was supposed to take place in the B4 Pod. According to Varela, the plan for the 23 hit was for Spalding to confront Deputy Torres as they walked into the B4 Pod and then 24 physically attack him. Varela stated that he and Barrera were supposed to hit Deputy Torres 25 with a jail-made shank. Campos was instructed to block any deputies that responded to 26 assist the victim. The plan was ordered to be carried out on April 20, 2014, but was spoiled 27 28 2 The facts are derived from the probation report lodged with the Court by Respondent. 1 when Deputy Torres did not enter the B4 Pod as expected. Varela also informed deputies 2 that another inmate, Raymond Ramirez, was assigned to carry a shank on his person at all 3 times. 4 According to Sergeant Henderson of the Kings County Jail, the B4 Pod is used as a 5 housing unit for known Norteno gang inmates. Petitioner and inmates Varela, Barrera, 6 Campos, Ramirez, and Spalding are all known and documented Norteno gang members. 7 As part of their ongoing investigation, deputies spoke with the victim, Deputy 8 Torres. Deputy Torres indicated he did not have any issues with Petitioner and never had 9 interactions outside the normal scope of his duties with any of the individuals involved. 10 Deputy Torres stated he had several interactions with Petitioner while working and only 11 knows Petitioner due to his employment as a detentions deputy sheriff. Deputy Torres 12 indicated that in 2014, Petitioner confronted him about his shift behavior and unfair 13 treatment of Norteno inmates. Deputy Torres informed petitioner he was just doing his job. 14 Deputies questioned Petitioner on May 2, 2014. Petitioner stated that several Kings 15 County Jail staff had come to him and asked him to “control” the Norteno inmates. 16 Petitioner informed staff that he had no control or power over any inmate housed at the jail. 17 He denied having any issues with Deputy Torres or any other member of the Kings County 18 Sheriff’s Department. He adamantly denied any knowledge about a hit being placed on 19 Deputy Torres. 20 Further investigation revealed that Petitioner was not happy with the treatment of 21 fellow gang members by the victim. Petitioner issued an order to assault Deputy Torres 22 with “full force,” which meant to stab Deputy Torres. Petitioner wrote two messages 23 authorizing the hit which were delivered through other Norteno gang members. During the 24 investigation, Petitioner was identified as the “Authority in Charge” of the Kings County 25 Jail for the Norteno gang and only Petitioner or his replacement trainee could have written 26 the messages. 27 Deputies searched the B4 Pod and located an unauthorized shank. Based on 28 information provided by informants, deputies also searched Ramirez’s person for a shank. 1 Ramirez was placed on a body scanner which provided a positive signal. A shank was 2 located in the holding cell toilet after Ramirez defecated. (Doc. 16-33 at 49-53.) 3 III. DISCUSSION 4 A. Jurisdiction 5 Relief by way of a petition for writ of habeas corpus extends to a person in custody 6 pursuant to the judgment of a state court if the custody is in violation of the Constitution, laws, or 7 treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 8 529 U.S. 362, 375 n. 7 (2000). Petitioner asserts that he suffered violations of his rights as 9 guaranteed by the United States Constitution. The challenged conviction arises out of the Kings 10 County Superior Court, which is located within the jurisdiction of this court. 28 U.S.C. § 11 2254(a); 28 U.S.C.§ 2241(d). 12 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 13 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its 14 enactment. Lindh v. Murphy, 521 U.S. 320 (1997) (holding the AEDPA only applicable to cases 15 filed after statute’s enactment). The instant petition was filed after the enactment of the AEDPA 16 and is therefore governed by its provisions. 17 B. Legal Standard of Review 18 A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless 19 the petitioner can show that the state court’s adjudication of his claim: (1) resulted in a decision 20 that was contrary to, or involved an unreasonable application of, clearly established Federal law, 21 as determined by the Supreme Court of the United States; or (2) resulted in a decision that “was 22 based on an unreasonable determination of the facts in light of the evidence presented in the State 23 court proceeding.” 28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); 24 Williams, 529 U.S. at 412-413. 25 A state court decision is “contrary to” clearly established federal law “if it applies a rule 26 that contradicts the governing law set forth in [the Supreme Court’s] cases, or “if it confronts a set 27 of facts that is materially indistinguishable from a [Supreme Court] decision but reaches a 28 different result.” Brown v. Payton, 544 U.S. 133, 141 (2005) (citing Williams, 529 U.S. at 405- 1 406). 2 In Harrington v. Richter, 562 U.S. 86, 101 (2011), the U.S. Supreme Court explained that 3 an “unreasonable application” of federal law is an objective test that turns on “whether it is 4 possible that fairminded jurists could disagree” that the state court decision meets the standards 5 set forth in the AEDPA. The Supreme Court has “said time and again that ‘an unreasonable 6 application of federal law is different from an incorrect application of federal law.’” Cullen v. 7 Pinholster, 563 U.S. 170, 203 (2011). The petitioner “must show far more than that the state 8 court's decision was ‘merely wrong’ or ‘even clear error.’” Shinn v. Kayer, ___ U.S. ___, ___ , 9 141 S.Ct. 517, 523, 2020 WL 7327827, *3 (2020) (quoting Virginia v. LeBlanc, 582 U. S. ___, 10 ___, 137 S.Ct. 1726, 1728 (2017) (per curiam)). Rather, a state prisoner seeking a writ of habeas 11 corpus from a federal court “must show that the state court’s ruling on the claim being presented 12 in federal court was so lacking in justification that there was an error well understood and 13 comprehended in existing law beyond any possibility of fairminded disagreement.” Richter, 562 14 U.S. at 103 (emphasis added); see also Kayer, 141 S.Ct. at 523, 2020 WL 7327827, *3. Congress 15 “meant” this standard to be “difficult to meet.” Richter, 562 U.S. at 102. 16 The second prong pertains to state court decisions based on factual findings. Davis v. 17 Woodford, 384 F.3d 628, 637 (9th Cir. 2003) (citing Miller-El v. Cockrell, 537 U.S. 322 (2003)). 18 Under § 2254(d)(2), a federal court may grant habeas relief if a state court’s adjudication of the 19 petitioner’s claims “resulted in a decision that was based on an unreasonable determination of the 20 facts in light of the evidence presented in the State court proceeding.” Wiggins v. Smith, 539 21 U.S. 510, 520 (2003); Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997). A state court’s 22 factual finding is unreasonable when it is “so clearly incorrect that it would not be debatable 23 among reasonable jurists.” Jeffries, 114 F.3d at 1500; see Taylor v. Maddox, 366 F.3d 992, 999- 24 1001 (9th Cir. 2004), cert.denied, Maddox v. Taylor, 543 U.S. 1038 (2004). 25 To determine whether habeas relief is available under § 2254(d), the federal court looks to 26 the last reasoned state court decision as the basis of the state court’s decision. See Ylst v. 27 Nunnemaker, 501 U.S. 979, 803 (1991); Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 28 2004). “[A]lthough we independently review the record, we still defer to the state court’s 1 ultimate decisions.” Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). 2 The prejudicial impact of any constitutional error is assessed by asking whether the error 3 had “a substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. 4 Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551 U.S. 112, 119-120 (2007) 5 (holding that the Brecht standard applies whether or not the state court recognized the error and 6 reviewed it for harmlessness). 7 C. Review of Petition 8 Petitioner raises five claims of ineffective assistance of counsel in his petition. He alleges 9 defense counsel failed to: 1) investigate and interview potential witnesses; 2) impeach witness 10 Ornelas; 3) introduce evidence of Petitioner’s prior assistance with police; 4) introduce evidence 11 and expert testimony that the messages were fake; and 5) properly investigate witnesses Varela 12 and Barrera based on their post-trial recantations. 13 1. Legal Standard 14 Effective assistance of counsel is guaranteed by the Due Process Clause of the Fourteenth 15 Amendment. Evitts v. Lucey, 469 U.S. 387, 391-405 (1985). Claims of ineffective assistance of 16 counsel are reviewed according to Strickland's two-pronged test. Strickland v. Washington, 466 17 U.S. 668, 687-88 (1984); Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989); United States v. 18 Birtle, 792 F.2d 846, 847 (9th Cir.1986); see also Penson v. Ohio, 488 U.S. 75 (1988) (holding 19 that where a defendant has been actually or constructively denied the assistance of counsel 20 altogether, the Strickland standard does not apply and prejudice is presumed; the implication is 21 that Strickland does apply where counsel is present but ineffective). 22 To prevail, Petitioner must show two things. First, he must establish that counsel’s 23 deficient performance fell below an objective standard of reasonableness under prevailing 24 professional norms. Strickland, 466 U.S. at 687-88. Second, Petitioner must establish that he 25 suffered prejudice in that there was a reasonable probability that, but for counsel’s unprofessional 26 errors, he would have prevailed on appeal. Id. at 694. A “reasonable probability” is a probability 27 sufficient to undermine confidence in the outcome of the trial. Id. The relevant inquiry is not what 28 counsel could have done; rather, it is whether the choices made by counsel were reasonable. 1 Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998). 2 With the passage of the AEDPA, habeas relief may only be granted if the state-court 3 decision unreasonably applied this general Strickland standard for ineffective assistance. 4 Knowles v. Mirzayance, 556 U.S. 111, 122 (2009). Accordingly, the question “is not whether a 5 federal court believes the state court’s determination under the Strickland standard “was incorrect 6 but whether that determination was unreasonable–a substantially higher threshold.” Schriro v. 7 Landrigan, 550 U.S. 465, 473 (2007); Knowles, 556 U.S. at 123. In effect, the AEDPA standard 8 is “doubly deferential” because it requires that it be shown not only that the state court 9 determination was erroneous, but also that it was objectively unreasonable. Yarborough v. 10 Gentry, 540 U.S. 1, 5 (2003). Moreover, because the Strickland standard is a general standard, a 11 state court has even more latitude to reasonably determine that a defendant has not satisfied that 12 standard. See Yarborough v. Alvarado, 541 U.S. 652, 664 (2004) (“[E]valuating whether a rule 13 application was unreasonable requires considering the rule’s specificity. The more general the 14 rule, the more leeway courts have in reaching outcomes in case-by-case determinations.”) 15 2. Analysis – Failure to Interview Witnesses 16 Petitioner first contends defense counsel failed to hire a private investigator to interview 17 witnesses in his case. The claim fails on both prongs of the Strickland test. 18 First, defense counsel stated that he had indeed hired a licensed investigator. (Doc. 1 at 19 38.) The investigator was also an expert on gang issues. Defense counsel stated that Petitioner 20 never informed him that a specific witness should have been used, and counsel was never given a 21 list of witnesses that would have assisted the defense. (Doc. 1 at 38.) Counsel stated he had 22 reviewed the file and had discussed the case with his expert and Petitioner on more than five 23 occasions, but his review led him to conclude that character witnesses would not have assisted the 24 defense, and there were no exculpatory witnesses. (Doc. 1 at 38.) Counsel further declared that 25 he had discussed the possibility of character witnesses with Petitioner “but as a matter of strategy 26 discarded the idea as it opened [Petitioner’s] past to exposure in front of the jury.” (Doc. 1 at 39.) 27 Counsel noted that “[c]alling Officer Narcisse as our witness would merely have shown that 28 [Petitioner] was in fact acting as a mouthpiece or leader and thus gave credence to the gang 1 allegation.” (Doc. 1 at 39.) Defense counsel stated he believed it better “to cross the officer to get 2 the information out that we needed.” (Doc. 1 at 39.) Thus, defense counsel provided sound 3 reasons for his strategy in this case. A fairminded jurist could conclude that counsel’s decision 4 was reasonable. 5 Petitioner also fails to show any prejudice. To demonstrate prejudice resulting from 6 defense counsel’s failure to call a witness, Petitioner “must name the witness, demonstrate that 7 the witness was available to testify and would have done so, set out the content of the witness’s 8 proposed testimony, and show that the testimony would have been favorable to a particular 9 defense.” Day v. Quarterman, 566 F.3d 527, 538 (5th Cir. 2009). Petitioner makes no such 10 showing. He merely speculates that additional witnesses would have been helpful. Thus, he fails 11 to demonstrate any prejudice. 12 3. Analysis – Failure to Impeach Ornelas 13 Petitioner next alleges defense counsel failed to impeach Ronald Ornelas, the main 14 witness against him, with readily available evidence. Again, Petitioner fails to satisfy either 15 prong of Strickland. 16 Petitioner fails to explain how defense counsel’s cross-examination of Ornelas was 17 deficient. Defense counsel cross-examined Ornelas at length, including Ornelas’s criminal 18 history of violent criminal activity involving stabbings, beatings, possession of weapons, and 19 ordering assaults on people. (Docs. 16-11 at 85-95; 16-17 at 19-20.) Defense counsel elicited 20 Ornelas’s position of authority in the gang. (Doc. 16-11 at 96-107.) He also cross-examined 21 Ornelas about being paid and given a deal by the prosecution in return for his testimony. (Doc. 22 16-11 at 117-120.) Defense counsel’s cross also appears to have been vigorous and thorough. 23 Petitioner also fails to demonstrate prejudice. He speculates that additional impeachment 24 would have benefitted the defense, but this is insufficient. Jones v. Gomez, 66 F.3d 199, 205 (9th 25 Cir. 1995) (“conclusory suggestions that his trial and state appellate counsel provided ineffective 26 assistance fall far short of stating a valid claim of constitutional violation”). 27 4. Analysis – Failure to Introduce Evidence of Petitioner’s Cooperation with Police 28 Petitioner next alleges defense counsel failed to present evidence that he cooperated with 1 police, because “that would clearly establish that such cooperation was a negative impact to the 2 People’s case.” (Doc. 1 at 31.) Respondent is correct that the claim is unsubstantiated. 3 As noted by Respondent, the sole basis for this claim is Petitioner’s own statement—with no 4 proof—that he cooperated with law enforcement during the investigation of a 1997 arson case. (Doc. 5 1 at 25.) Because Petitioner provided no support for the claim, he fails to demonstrate that the 6 state court rejection was unreasonable. 7 5. Analysis – Failure to Introduce Evidence Concerning Prison Messages 8 Petitioner contends that defense counsel failed to present an expert to opine that the prison 9 kites3 were fake. The claim fails for several reasons. 10 As an initial matter, Petitioner makes no showing that the kites were fake, or how they 11 were fake. He makes no offer of proof from any expert who could testify that the kites were 12 indeed fake. This alone is fatal to his claim. In addition, defense counsel declared that “the 13 assertion that prosecution[’s] [g]ang expert was relying on fabricated evidence has no basis.” 14 (Doc. 1 at 40.) Given that defense counsel believed the kites to be authentic, a rational jurist 15 could conclude that defense counsel made a reasonable decision in not obtaining an expert on 16 gang kites. 17 Moreover, defense counsel was successful in excluding the kites from evidence with 18 motions in limine. (Doc. 1 at 38.) He stated, “To have brought up any mention of these items 19 during trial would have been opening up the prosecution to speak to those items and thus 20 prejudice my client.” (Doc. 1 at 38.) It would serve no purpose to undermine the authenticity of 21 the gang kites when defense counsel had already successfully kept them out of evidence, and 22 worse, the attempt could prove counter-productive and prejudicial. 23 Petitioner also fails to show any prejudice. Petitioner does not explain how the outcome 24 would have been any different had the kites been admitted but then alleged to be fake. 25 6. Analysis – Post-Trial Recantations by Varela and Barrera 26 Petitioner next claims that defense counsel rendered ineffective assistance in his 27 3 A “kite” is a message or note sent between prisoners. It is often written in very small 28 handwriting and concealed so as not to be discovered by prison authorities. 1 investigation in light of post-trial recantations by Varela and Barrera. Petitioner fails to 2 demonstrate how counsel erred. Counsel stated that he discussed every aspect of the case, 3 including potential witnesses, with Petitioner. (Doc. 1 at 40.) Counsel further stated that he 4 instructed his gang expert to interview witnesses if Petitioner felt it necessary. (Doc. 1 at 39.) 5 Petitioner offers no reason why counsel could or should have known that the witnesses would 6 have recanted after trial. 7 Petitioner also fails to show any prejudice. Because the witnesses recanted after trial does 8 not mean they would have recanted had defense counsel done further investigation before trial. 9 There is no basis from which to conclude that additional investigation would have led to the 10 witnesses’ recantations. The state court could reasonably determine that counsel did not err and 11 that Petitioner failed to show any prejudice. 12 IV. RECOMMENDATION 13 Based on the foregoing, the Court RECOMMENDS that the Petition for Writ of Habeas 14 Corpus be DENIED with prejudice on the merits. 15 This Findings and Recommendation is submitted to the United States District Court Judge 16 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the 17 Local Rules of Practice for the United States District Court, Eastern District of California. Within 18 thirty (30) days after being served with a copy of this Findings and Recommendation, any party 19 may file written objections with the Court and serve a copy on all parties. Such a document 20 should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies 21 to the Objections shall be served and filed within fourteen (14) court days (plus three days if 22 served by mail) after service of the Objections. The Court will then review the Magistrate 23 Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file 24 // 25 // 26 // 27 // 28 // 1 objections within the specified time may waive the right to appeal the Order of the District Court. 2 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 IT IS SO ORDERED. 4 5 Dated: April 14, 2022 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28