FINDINGS AND RECOMMENDATION RECOMMENDING DENIAL OF
PETITION FOR WRIT OF HABEAS CORPUS ORDER DIRECTING CLERK OF
COURT TO UPDATE PETITIONER'S ADDRESS
Petitioner
is a state prisoner proceeding pro se with a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On
April 22, 2016, Petitioner was convicted after a jury trial
in the Fresno County Superior Court of first-degree murder.
(1 CT[1] 294.) The jury could not agree on a
finding regarding the special allegation that Petitioner
personally and intentionally discharged a firearm which
proximately caused death to the victim. (1 CT 293; 7
RT[2]
1529-34.) Petitioner was sentenced to an indeterminate
imprisonment term of twenty-five years to life. (2 CT 334.)
On January 7, 2020, the California Court of Appeal, Fifth
Appellate District affirmed the judgment.
People v. Apolinar, No. F073905, 2020 WL 65080
(Cal.Ct.App. Jan. 7, 2020). On January 23, 2020, the
California Court of Appeal denied Petitioner's petition
for rehearing. (LD[3] 12.) On March 25, 2020, the California
Supreme Court denied Petitioner's petition for review.
(LD 13.)
In the
instant federal petition for writ of habeas corpus
Petitioner challenges the admission of his August 3, 2011
statements to law enforcement, asserting that the state
courts' adjudication of his claim resulted in a decision
that was contrary to, or involved an unreasonable application
of, clearly established federal law as determined by the
Supreme Court and was based on an unreasonable determination
of the facts in light of the evidence presented in the state
court. (ECF No. 1 at 5, 19.)[4] Respondent filed an answer. (ECF
No. 15.)
STATEMENT
OF FACTS[5]
Appellant worked at a mattress company where James B. was
plant manager. Appellant was disrespectful to supervisors and
on one occasion got into a shoving match with another
employee. James fired appellant. A few months later, on June
30, 2011,[6]at approximately 7:00 p.m., appellant
encountered James's brother, Harvey B., and got into a
verbal confrontation with him. Appellant told Harvey that
James was “a punk and a bitch”; that James
“acts like his shit don't stink”; and that
appellant was going to “tell it to [James's]
face” by going to James's house. Harvey said that
appellant was “filled with anger ... as if he was just
holding this grudge for a long time and just did not want to
let it go.”
That night, at approximately 11:45 p.m., James was shot in
his home while taking a shower and died. Eight fresh shell
casings were found outside James's bathroom window. There
were four holes consistent with a bullet shape in the
bathroom window screen, and some of them had
“halos,” which indicated the gun was fired from a
close distance. The screen was peeled up on one side. Another
spent shell casing of the same type was found under
James's body. It was determined that for this to have
happened, the shooter would have had to put his entire arm
inside the bathroom past the threshold of the window before
firing. Harvey gave police appellant's name as a possible
suspect because of the conversation he had with him earlier
that day.
Neighbors gave descriptions of a vehicle they saw leaving
James's house after the shooting that matched
appellant's truck. On July 1, Fresno County Sheriff's
Detective Falls called appellant to speak with him. Appellant
hung up on Falls after Falls told appellant he was
investigating an injury of appellant's coworker and asked
about appellant's whereabouts. On July 2, Falls and
Detective Grajeda
conducted a pretext stop of appellant's vehicle. Falls
asked appellant if he would agree to voluntarily go to police
headquarters to provide a statement, and appellant agreed.
Falls and Grajeda recorded an interview with appellant that
day, and appellant denied knowing anything about James's
death.
On August 3, appellant was brought to the Fresno
Sheriff's Department headquarters for more questioning.
Grajeda interviewed appellant with Detective Toscano and gave
appellant a Miranda admonition. Appellant agreed to
speak with Grajeda and Toscano and denied involvement with
James's murder. The detectives asked appellant about an
acquaintance of his named A.M.[7] and suggested that A.M. saw
appellant kill James. Appellant said if A.M. said he saw
appellant commit the murder, A.M. would be lying, and
appellant continued to deny involvement. Appellant was then
placed under arrest for James's murder and taken to a
holding cell.
Before being transported to jail, appellant told the
detectives he wanted to speak to them again. Appellant then
explained that on the night of James's death, he obtained
a gun to “not necessarily kill ... but maybe
fuckin' shoot” James. Appellant said his intent was
not to kill James but to shoot him in the “leg or the
arm or something.” Appellant then called A.M. and said,
“ ‘Hey, you wanna go do something?' ”
When A.M. said he did, appellant immediately picked up A.M.
Upon picking up A.M., appellant gave A.M. the gun because
appellant did not want it found on him in case he got pulled
over.
When appellant and A.M. arrived at James's house,
appellant saw a car he did not recognize in James's
driveway and changed his mind about shooting James. Appellant
told A.M., “ ‘Fuck, I don't know whose car
that is, Fool. I don't know about this.' ”
Appellant passed James's house, made a U-turn, turned his
headlights off, and slowly began to approach James's
house again, and as he did, A.M. said, “ ‘Well,
let's at least scare 'em.' ” A.M. then got
out of the truck, and appellant thought “there's no
sense in both of us getting out the car and fuckin' you
know somebody had to drive, so I fuckin' I stayed in the
fuckin' car.” A.M. then shot through James's
window. Appellant heard a couple of bangs. Appellant did not
get out of the truck. A.M. then got back into the truck, and
appellant “peeled off” and left the vicinity.
Appellant told the detectives he had work gloves on because
he was going to shoot James. Appellant put them on when they
started to get close to James's house. After the
shooting, appellant took his clothes off and put them in a
duffel bag. When appellant dropped A.M. off, he gave A.M. the
bag and told A.M. to wash appellant's clothes. Appellant
had another layer of clothes on underneath the clothes he
took off so that he could avoid detection if he were to be
caught. Appellant said the gloves he wore would still be in
the bathroom of his home.
On August 10, a search warrant was executed at
appellant's home where gloves were found that tested
positive for gunshot residue. This suggested the gloves were
“in the vicinity of the discharge of a firearm.”
The pathologist who performed the autopsy testified that
James had two gunshot wounds. One was on the back of the left
shoulder above the armpit. The other was higher up on the
left back passing upwards. Stippling, burned and unburned
gunpowder, was present on James's body, which indicates
the muzzle of the weapon was in close proximity to the
skin's surface.
Appellant testified in his own defense. Appellant testified
to substantially the same events as his most recent statement
to the detectives. He testified that after A.M. said,
“Let's at least scare him,” appellant tried
to talk A.M. out of it by saying, “Come on. Let's
go. It's not worth it. Let's dip out.” At that
point, appellant said he had given up and did not want to
hurt James. Appellant said that after A.M. got back in the
car, A.M. never put the gun away, and the gun was pointed
toward appellant. Appellant said that at the end of the
night, he shook A.M.'s hand with appellant's gloves
on. Appellant insisted he did not shoot James. Appellant said
he was not truthful with law enforcement when he denied
involvement because he was raised to avoid police contact.
Appellant testified he did not like James and felt James was
disrespectful toward him and others.
Apolinar, 2020 WL 65080, at *1-2 (footnotes in
original).
Relief
by way of a petition for writ of habeas corpus extends to a
person in custody pursuant to the judgment of a state court
if the custody is in violation of the Constitution or laws or
treaties of the United States. 28 U.S.C. § 2254(a); 28
U.S.C. § 2241(c)(3); Williams v. Taylor, 529
U.S. 362, 375 (2000). Petitioner asserts that he suffered
violations of his rights as guaranteed by the U.S.
Constitution. The challenged conviction arises out of the
Fresno County Superior Court, which is located within the
Eastern District of California. 28 U.S.C. § 2241(d).
On
April 24, 1996, Congress enacted the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”),
which applies to all petitions for writ of habeas corpus
filed after its enactment. Lindh v. Murphy, 521 U.S.
320 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499
(9th Cir. 1997) (en banc). The instant petition was filed
after the enactment of AEDPA and is therefore governed by its
provisions.
Under
AEDPA, relitigation of any claim adjudicated on the merits in
state court is barred unless a petitioner can show that the
state court's adjudication of his claim:
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d); Harrington v. Richter, 562
U.S. 86, 97-98 (2011); Lockyer v. Andrade, 538 U.S.
63, 70-71 (2003); Williams, 529 U.S. at 413.
As a
threshold matter, this Court mu...
