Avila v. Sullivan, 1:18-cv-01243-DAD-JLT (HC)

• Decision Date: 09 January 2019
• Docket Number: No. 1:18-cv-01243-DAD-JLT (HC),1:18-cv-01243-DAD-JLT (HC)
• Citation: Avila v. Sullivan, No. 1:18-cv-01243-DAD-JLT (HC) (E.D. Cal. Jan 09, 2019)
• Parties: MICHAEL AVILA, Petitioner, v. WARDEN SULLIVAN, Respondent.
• Court: U.S. District Court — Eastern District of California

MICHAEL AVILA, Petitioner, v. WARDEN SULLIVAN, Respondent.

No. 1:18-cv-01243-DAD-JLT (HC)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

January 9, 2019

FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT OF HABEAS CORPUS

[TWENTY-ONE DAY OBJECTION DEADLINE]

Petitioner is currently in state prison serving a sentence of 25 years to life plus 11 years for first degree residential burglary.He filed the instant habeas action challenging the conviction.As discussed below, the Court finds the claims to be without merit and recommends the petition be DENIED.

I.PROCEDURAL HISTORY

On July 9, 2015, a Kern County jury found Petitioner guilty of first degree residential burglary (Cal. Penal Code §§ 460(a); 667.5(c)(21)), possessing a burglary tool (Cal. Penal Code § 466), and delaying a peace officer in performance of his or her duties (Cal. Penal Code § 148(a)(1)).People v. Avila, 2017 WL 3167473, at *1(Cal. Ct. App.July 26, 2017).The trial court found Petitioner had suffered two prior convictions for serious felonies that constituted strikes under California's Three Strikes law (Cal. Penal Code §§ 667(a), (c)-(j); 1170.12(a)-(e)), and further found Petitioner had served four prior prison terms (Cal. Penal Code § 667.5(b)).Id.The court sentenced him to an aggregate prison term of 25 years to life plus 11 years.Id.

Petitioner appealed to the California Court of Appeal, Fifth Appellate District("Fifth DCA").On July 26, 2017, the Fifth DCA affirmed judgment.Id.Petitioner filed a petition for review in the California Supreme Court, and the petition was denied on October 25, 2017.Id.

On September 13, 2018, Petitioner filed a petition for writ of habeas corpus in this Court.(Doc. 1.)Respondent filed an answer on November 16, 2018.(Doc. 11.)Petitioner did not file a traverse.

II.FACTUAL BACKGROUND

The Court adopts the Statement of Facts in the Fifth DCA's unpublished decision¹:

At approximately 9:00 p.m. on February 2, 2015, Kern County Sheriff's Deputy Vollmer was on patrol in the area of Filburn Avenue and Pepper Tree Close in Wasco.He saw a Hispanic male (subsequently identified as Barrios) in dark clothing, sitting on a bicycle near the area of Filburn and the open south end of the Pepper Tree Close cul-de-sac.When Barrios saw Vollmer's patrol vehicle, he started to ride away on his bicycle.Vollmer lost sight of him.

Vollmer noticed a second bicycle lying in a grass area just outside the opening in the wall separating Filburn from Pepper Tree Close.Suspecting possible criminal activity in light of Barrios's appearance and conduct, Vollmer pulled over and stopped.Not seeing anyone in the vicinity, he walked to where he could see into the residential area, which was well lit.The garage door was open in a residence on Pepper Tree Close, and the light was on inside.

As Vollmer approached the garage, he saw the back of a subject inside.Vollmer could see clearly in the garage.The person, who was wearing a gray hooded sweatshirt with the hood down, a white or light-colored hat, and blue jeans, was standing just inside the garage near a cardboard box.Vollmer saw his face from no farther away than five feet and instantly recognized him, from a number of prior contacts during which they had spoken face-to-face, as defendant.[FN 2.]Defendant acted as if he was looking around inside the garage, then he reached down toward the box.

[FN 2.]Vollmer's most recent contact with defendant was about a month earlier.

Vollmer approached along the passenger side of a vehicle that was parked in the driveway.Defendant noticed him and came out of the garage crouched down, and went between the two vehicles in the driveway.When Vollmer loudly yelled, "Sheriff's Department.You better stop,"defendant stood up and looked at Vollmer.Vollmer again had a clear view of his face from a few feet away.There was no doubt in Vollmer's mind concerning defendant's identity.They made eye contact, anddefendant ran south through the opening in the wall, and then west along the grass area on Filburn.Vollmer chased after him.Defendant began throwing three items—Armor All original cleaner, tire cleaner, and Armor All soap—from the front pocket of his sweatshirt.As he ran, he looked back at Vollmer.

Vollmer lost defendant in a residential area one block to the west.Vollmer broadcast defendant's description (Hispanic male, white hat, gray sweatshirt, blue jeans), then went back to retrieve the items defendant had dropped.He then returned to his patrol vehicle.Within minutes, Deputy Davis broadcast that he had seen the subject running near the 1900 block of Broadway, which was one block east of Pepper Tree Close.At first, Davis did not get a good look at the person, who was running away from him and jumping fences between houses.Davis unsuccessfully tried to cut him off.As Davis drove eastbound on 16th Street, he saw a Hispanic male in a gray hooded sweatshirt in his rearview mirror.The person was running toward some apartments.Davis turned around and got a clear look at the subject.It was defendant, whom Davis had seen before.

Upon hearing Davis's broadcast, Vollmer began driving around the area in an attempt to locate defendant.When he saw Davis turn down 16th Street, he followed.Both deputies exited their vehicles in front of an apartment complex on 16th Street.They contacted two subjects—defendant and Barrios—who were standing at the bottom of the apartment complex stairwell.Defendant was wearing a gray hooded sweatshirt and blue jeans, the same outfit Vollmer had seen a few minutes earlier minus the hat.Barrios was straddling the same bicycle he had earlier.Defendant was standing in front of him as they conversed.Despite the fact it was fairly cold, there was sweat dripping off defendant's head and he was breathing heavily.This was no more than 10 minutes after Vollmer saw defendant inside the garage, which was about three blocks away.

Vollmer again yelled, identifying himself and ordering defendant and Barrios to stop.Defendant and Vollmer made eye contact; Vollmer recognized him as the person he had seen in the garage.Defendant and Barrios ran up the stairwell into the apartment complex.They entered the apartment at the top of the stairs and were taken into custody.Davis then took defendant back downstairs and searched him.In defendant's right front pants pocket was what was known as a shaved key.Davis had training and experience in identifying burglary tools, specifically shaved keys.Such keys usually are used for getting into cars and houses, as well as for stealing cars.A shaved key has wear marks, such as brush marks from sandpaper or some sort of sanding tool.

While Davis transported both subjects to the substation, Vollmer contacted Anthony Gomez, a resident of the house in the garage of which defendant had been.Gomez and his parents had been inside the house around 9:00 p.m. that evening when Gomez heard a noise in the garage.A short time later, Gomez went into the garage and was contacted by Vollmer.Vollmer took Gomez to view some items in the grassy area by the cul-de-sac opening.Gomez identified the items as having come from the carwash kit Gomez had in a box inside the garage.Gomez did not know defendant, who did not have permission to be inside the garage or to take the items.

Avila, 2017 WL 3167473, at *1-2.

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III.DISCUSSION

A.Jurisdiction

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, 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 n. 7(2000).Petitioner asserts that he suffered violations of his rights as guaranteed by the United States Constitution.The challenged conviction arises out of the Kern County Superior Court, which is located within the jurisdiction of this court.28 U.S.C. § 2254(a);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)(holding the AEDPA only applicable to cases filed after statute's enactment).The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.

B.Legal Standard of Review

A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless the 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);Lockyer v. Andrade, 538 U.S. 63, 70-71(2003);Williams, 529 U.S. at 412-413.

A state court decision is "contrary to" clearly established federal law "if it applies a rule that contradicts the governing law set forth in [the Supreme Court's]cases, or "if it confronts a set of facts that is materially indistinguishable from a [Supreme Court] decision but reaches a different result."Brown v. Payton, 544 U.S. 133, 141(2005)(citingWilliams, 529 U.S. at 405-406).

In Harrington v. Richter, 562 U.S. 86, 101(2011), the U.S. Supreme Court explained thatan "unreasonable application" of federal law is an objective test that turns on "whether it is possible that fairminded jurists could disagree" that the state court decision meets the standards set forth in the AEDPA.The Supreme Court has "said time and again that 'an unreasonable application of federal law is different from an incorrect application of federal law.'"Cullen v. Pinholster, 563 U.S. 170, 203(2011).Thus, a state prisoner seeking a writ...