Uvaldo Mora v. Francisco Jacques

FILED
NOT FOR PUBLICATION SEP 25 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UVALDO MORA, No. 10-56331
Petitioner - Appellant, D.C. No.
v. 2:09-cv-07486-DMG-RNB
FRANCISCO JACQUEZ, Warden,
MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Argued and Submitted May 7, 2012
Pasadena, California
Before: NOONAN and FISHER, Circuit Judges, and MUELLER, District Judge.**
Petitioner Uvaldo Mora appeals the district court’s denial of habeas relief
under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Kimberly J. Mueller, District Judge for the U.S.
District Court for Eastern California, sitting by designation.
§ 2254. We have jurisdiction under 28 U.S.C. § 2253, and, reviewing de novo,
affirm. See, e.g., Crittenden v. Ayers, 624 F.3d 943, 950 (9th Cir. 2010).
On January 16, 2005, petitioner abducted a rival gang member at gunpoint,
taking his van, driving to two locations, and interrogating the victim over the
course of approximately four hours. Petitioner subsequently was convicted of six
separate state law offenses related to kidnapping. The sentences for the lesser
included offenses at issue in this petition were stayed under California Penal Code
§ 654, which prohibits multiple punishments arising from the same course of
conduct. Petitioner’s convictions were upheld by the California Court of Appeal
on direct appeal. The California Supreme Court declined review. His subsequent
habeas petition before the California Superior Court was denied through
application of a state law procedural bar. Petitioner’s more fully developed habeas
petition to the California Supreme Court, which cured the earlier procedural
default, was denied without citation or comment.
This court reviews the state supreme court’s summary disposition of
plaintiff’s habeas petition under the deferential standard of 28 U.S.C. § 2254(d),
which allows federal habeas relief only where the state court decision is “contrary
to” then-clearly established federal law set forth in the holdings of the Supreme
Court, an “unreasonable application” of such clearly established law, or “based on
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an unreasonable determination of the facts” considering the record before the state
court. See 28 U.S.C. § 2254(d); Harrington v. Richter, __ U.S. __, 131 S. Ct. 770,
786, 178 L. Ed. 2d 624 (2011).
Petitioner claims his multiple convictions violate the double jeopardy clause
of the Fifth Amendment to the United States Constitution, applied to the states
through the Fourteenth Amendment. Petitioner relies on Ball v. United States, 470
U.S. 856 (1985), to argue that his convictions for lesser included crimes must be
vacated. He relies on Brown v. Ohio, 432 U.S. 161 (1977), to argue that the
California Court of Appeal erred by finding his single act of kidnapping could be
separated into distinct periods.
The cases relied upon by petitioner do not present “clearly established law”
of which the state court ran afoul. In Ball, the Court declined to address whether
separate criminal possession convictions could stand where the defendant
possessed a gun, surrendered, and later regained it. 470 U.S. at 859 n.6. Similarly,
in Brown, where the petitioner held uninterrupted possession of a stolen car for
nine days, the Court noted that multiple prosecutions may have been permissible if
the state legislature had provided a basis for dividing the crime into parts. 432 U.S.
at 169 n.8. Here, state law allows for such a division. Cf. People v. Thomas, 26
Cal. App. 4th 1328, 1334-35 (Cal. Ct. App. 1994) (kidnapping continued for as
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long as victim was forcibly detained).
Furthermore, “[t]o meet the ‘unreasonable determination’ standard
under § 2254(d)(2), the habeas court ‘must be convinced that an appellate panel .
. . could not reasonably conclude that the finding is supported by the record . . .
[or] that any appellate court to whom the defect is pointed out would be
unreasonable in holding that the state court’s fact-finding process was adequate.’”
Ocampo v. Vail, 649 F.3d 1098, 1106 (9th Cir. 2011) (quoting Taylor v. Maddox,
366 F.3d 992, 1000 (9th Cir. 2004)). Here, the state supreme court’s decision was
not based on an unreasonable determination of the facts in light of the evidence
before the court.
Finally, we construe the uncertified claim briefed by appellant, that
insufficient evidence supports petitioner’s conviction of kidnapping to commit
robbery, as a motion to expand the certificate of appealability. So construed, the
motion is denied. See 9TH CIR. R. 22–1(e); Hiivala v. Wood, 195 F.3d 1098,
1104-05 (9th Cir.1999) (per curiam).
AFFIRMED.
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