Camel v. Sherman, 2:18-cv-1560-TLN-EFB P

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Docket NumberNo. 2:18-cv-1560-TLN-EFB P,2:18-cv-1560-TLN-EFB P
PartiesPERCY LAMONTE CAMEL, Petitioner, v. STUART SHERMAN, Respondent.
Decision Date30 July 2019


No. 2:18-cv-1560-TLN-EFB P


July 30, 2019


Petitioner is a California state prisoner who, proceeding with counsel, brings an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He was convicted in the San Joaquin County Superior Court of: (1) two counts of first degree murder (Pen. Code § 187); (2) the multiple murder special circumstance (Pen. Code § 190.2); (3) one count of attempted murder (Pen. Code §§ 664, 187); (4) multiple counts for firearm use (Pen. Code §§ 12022.5, 12022.53); (5) shooting at an inhabited dwelling and an occupied motor vehicle (Pen. Code § 246); (6) being a prohibited person in possession of a firearm (Pen. Code § 12021); and (7) possession of an assault weapon (Pen. Code § 12280). The immediate habeas petition raises the following claims: (1) petitioner's Fourth Amendment rights were violated when the trial court denied his motion to suppress evidence seized from a car trunk;1 (2) petitioner's Fourth

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Amendment rights were violated when the trial court denied his motion to suppress evidence obtained by wiretap; (3) the trial court committed prejudicial error when it declined to sever factually distinct counts against him into separate trials; and (4) the trial court violated his due process rights by failing to sua sponte instruct on the lesser included offenses of voluntary manslaughter and attempted voluntary manslaughter.

For the reasons stated below, the petition must be denied in its entirety.


Two separate incidents underlie petitioner's convictions.

I. Skyline Incident

On December 1, 2009, Roberto Hernandez was driving his car toward a Stockton liquor market. Two friends - Alejandro Salazar and Jorge Sanchez - rode with him. En route, they spotted petitioner driving a distinctive purple Oldsmobile up and down the streets of the neighborhood. Based on the methodical way petitioner was driving, Hernandez and his companions concluded that he was looking for them. At trial, Salazar testified that, roughly five months prior, he had encountered petitioner at a stop sign while both were driving separately. Petitioner later phoned Salazar and accused him of trying to stare him down - an expression which petitioner interpreted as a sign of disrespect. Thereafter, Salazar began attempting to avoid petitioner.

Fearing a confrontation, the three men changed plans and made for a different liquor store. Nevertheless, when they reached their new destination, petitioner was already parked outside. Upon seeing Hernandez and company, petitioner leaned out of the window of his car and shouted, "I'm going to kill you all." Hernandez promptly drove out of the parking lot, but not before Sanchez, who was armed, fired a shot from the front passenger seat.

After the encounter in the liquor store parking lot, Hernandez, Salazar, Sanchez, and other acquaintances congregated on the sidewalk of Skyline Drive - an area that was not a popular hangout spot - to smoke marijuana and avoid petitioner. Shortly thereafter, gunshots rang out.

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More than nine shots were fired in rapid succession from behind bushes on an adjacent street corner. The gunman was an African American male, with the same complexion and build as petitioner.

Salazar was shot in his left leg and left arm, but managed to escape with his life. Hernandez was shot in his pelvic area and in his chest. He was transported to a hospital where, despite the best efforts of emergency physicians to resuscitate him, he bled to death. The chest wound was subsequently identified as the cause of death.

II. USA Gas Incident

On February 6, 2010, Francisco Bernardino, Raul Abundes Jr., Vicente Cardenas, Jorge Sanchez (the same as was involved in the foregoing Skyline incident), and others drove from Stockton to the Palladium Nightclub in Modesto. Petitioner was present at the club that night with friends, including a man named Chris Padilla. While at the club, an altercation broke out between Padilla and Cardenas. Cardenas punched Padilla and fled; the latter was kicked out of the club. Padilla told his companions - including petitioner - about what had befallen him.

In the early morning hours of February 7, 2010, and after the nightclub closed, both groups returned to Stockton. Petitioner retrieved a gun from his house and, together with his friends, drove around looking for Cardenas. Meanwhile, Cardenas had eaten a meal at a local Denny's restaurant and been dropped off at his house by Bernardino.

After dropping off Cardenas, Bernardino and Abundes stopped at a USA gas station. Abundes wanted to purchase a cigar that he could use to roll a marijuana cigarette. After Abundes went inside and made his purchase, the two men sat in the car and talked. While the two men conversed in the car, a pair of gunmen fired approximately thirty rapid shots at them. Abundes felt a bullet graze his neck, proceeded to duck down and place his head between his knees, and survived the shooting.

Bernardino died at the scene. An autopsy revealed that he was shot between fifteen and twenty-two times with high velocity rounds. Two of the bullet wounds were classified as fatal - (1) a bullet that entered his cranial cavity and exploded and (2) a bullet that entered his chest, lacerated a lung, and caused massive bleeding in his chest cavity.

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Later that morning, petitioner called Padilla and stated that he had shot some of Cardenas' friends. He also indicated that he had been responsible for the Skyline shooting. Additionally, a male caller left a message on Cardenas' cell phone saying "Go pick up your boy at the gas station. I think he's dead, ha-ha-ha-ha."


I. Applicable Statutory Provisions

28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), provides in relevant part as follows:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the 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.

Section 2254(d) constitutes a "constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus." (Terry) Williams v. Taylor, 529 U.S. 362, 412 (2000). It does not, however, "imply abandonment or abdication of judicial review," or "by definition preclude relief." Miller El v. Cockrell, 537 U.S. 322, 340 (2003). If either prong (d)(1) or (d)(2) is satisfied, the federal court may grant relief based on a de novo finding of constitutional error. See Frantz v. Hazey, 533 F.3d 724, 736 (9th Cir. 2008) (en banc).

The statute applies whenever the state court has denied a federal claim on its merits, whether or not the state court explained its reasons. Harrington v. Richter, 562 U.S. 86, 99-100 (2011). State court rejection of a federal claim will be presumed to have been on the merits absent any indication or state law procedural principles to the contrary. Id. at 784-785 (citing Harris v. Reed, 489 U.S. 255, 265 (1989) (presumption of a merits determination when it is unclear whether a decision appearing to rest on federal grounds was decided on another basis)).


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"The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely." Id. at 785.

A. "Clearly Established Federal Law"

The phrase "clearly established Federal law" in § 2254(d)(1) refers to the "governing legal principle or principles" previously articulated by the Supreme Court. Lockyer v. Andrade, 538 U.S. 63, 71 72 (2003). Only Supreme Court precedent may constitute "clearly established Federal law," but courts may look to circuit law "to ascertain whether . . . the particular point in issue is clearly established by Supreme Court precedent." Marshall v. Rodgers, 133 S. Ct. 1446, 1450 (2013).

B. "Contrary To" Or "Unreasonable Application Of" Clearly Established Federal Law

Section 2254(d)(1) applies to state court adjudications based on purely legal rulings and mixed questions of law and fact. Davis v. Woodford, 384 F.3d 628, 637 (9th Cir. 2003). The two clauses of § 2254(d)(1) create two distinct exceptions to AEDPA's limitation on relief. Williams, 529 U.S. at 404-05 (the "contrary to" and "unreasonable application" clauses of (d)(1) must be given independent effect, and create two categories of cases in which habeas relief remains available).

A state court decision is "contrary to" clearly established federal law if the decision "contradicts the governing law set forth in [the Supreme Court's] cases." Id. at 405. This includes use of the wrong legal rule or analytical framework. "The addition, deletion, or alteration of a factor in a test established by the Supreme Court also constitutes a failure to apply controlling Supreme Court law under the 'contrary to' clause of the AEDPA." Benn v. Lambert, 283 F.3d 1040, 1051 n.5 (9th Cir. 2002). See, e.g., Williams, 529 U.S. at 391, 393 95 (Virginia Supreme Court's ineffective assistance of counsel analysis "contrary to" Strickland2 because it added a third prong unauthorized by Strickland); Crittenden v. Ayers, 624 F.3d 943, 954 (9th Cir.

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2010) (California Supreme Court's Batson3 analysis "contrary to" federal law because it set a higher bar for a prima facie case of discrimination than established in Batson itself); Frantz, 533 F.3d at 734 35 (Arizona court's...

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