Cardoso v. Robinson

• Docket Number: 1:19-cv-01497-AWI-HBK (HC)
• Decision Date: 29 March 2023
• Parties: JOSE JERONIMO CARDOSO, Petitioner, v. JAMES ROBINSON, Respondent.
• Court: U.S. District Court — Eastern District of California

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JOSE JERONIMO CARDOSO, Petitioner, v. JAMES ROBINSON, Respondent.

No. 1:19-cv-01497-AWI-HBK (HC)

United States District Court, E.D. California

March 29, 2023

FINDINGS AND RECOMMENDATIONS TO DENY PETITION FOR WRIT OF HABEAS CORPUS AND TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY ^[1]

FOURTEEN-DAY OBJECTION PERIOD

(DOC. NO. 2)

HELENA M. BARCH-KUCHTA, UNITED STATES MAGISTRATE JUDGE

Petitioner Jose Jeronimo Cardoso (“Cardoso” or “Petitioner”), a state prisoner proceeding with counsel, has pending a petition for writ of habeas corpus under 28 U.S.C. § 2254. (Doc. No. 2 “Petition”). The Petition raises three grounds of ineffective assistance of trial counsel: (1) for failing to object to the prosecutor's misstatement of the law related to the provocation doctrine, (2) for failing to investigate and present a provocation defense, and (3) for failing to consult with and present a defense gang expert. The Petition also raises a claim of cumulative error. (Id. at 45). For the reasons set forth below, the undersigned recommends the district court deny Petitioner any relief on his Petition and decline to issue a certificate of appealability.

BACKGROUND

A. Procedural History

Petitioner initiated this case on October 21, 2019, by filing a petition for writ of habeas corpus under 28 U.S.C. § 2254. (Doc. No. 2). In response, Respondent lodged the pertinent state court record on May 29 and June 4, 2020, and filed an answer to the Petition on June 12, 2020. (Doc. Nos. 12-15). After an extension of time, Petitioner filed a traverse on August 12, 2020. (Doc. No. 18). On November 17, 2020, the case was reassigned to the undersigned. (Doc. No. 19). The matter is deemed submitted on the record before the Court.

B. Facts Based Upon the State Court Record

In 2013, a Kings County jury convicted Cardoso of premeditated attempted murder and shooting at an inhabited dwelling and found true gang and firearm enhancements. (Doc. No. 2 at 1). The gang enhancements were reversed on direct appeal, and Petitioner is serving a sentence of 32 years-to-life. (Id.; Doc. No. 14-7). The Court adopts the pertinent facts of the underlying offenses, as summarized by the California Court of Appeal. Unless a petitioner demonstrates by clear and convincing evidence otherwise, a presumption of correctness applies to these facts. See 28 U.S.C. § 2254(e)(1); Crittenden v. Chappell, 804 F.3d 998, 1010-11 (9th Cir. 2015).

The Charged Offenses

As of January 2013, Christian Hernandez had been seeing Anisa Rosales off and on for about a year.²

FN [2]: Unspecified references to dates in the statement of facts are to the year 2013.

They broke up in September 2012, when Hernandez learned she was seeing Cardoso.³

FN [3]: According to Rosales, who testified under a grant of immunity, she and Hernandez broke up around the end of January 2012, because Hernandez physically abused her on multiple occasions. Hernandez was violent and jealous and always carried a gun. Rosales began dating Cardoso in February 2012, and continued to see him until January 2013. During that time, Cardoso did not have a car. A few days before the shooting, however, she saw Cardoso driving a small silver car that looked like a Honda. She saw Cardoso with an older, rusted, western-type revolver a week or a few weeks before the shooting. Cardoso knew about Hernandez, because Hernandez would “blow up” Rosales's phone every day. Rosales never heard Cardoso say he wanted Hernandez dead. However, Hernandez said on numerous occasions that he wanted Cardoso dead, because Rosales wanted to be with Cardoso rather than Hernandez. Hernandez continually harassed and threatened Cardoso and Cardoso's family, and Rosales and her family.

Rosales met Mendez one time, a week or a few weeks before the shooting. He was with Cardoso.

Hernandez saw Rosales frequently and continued to have a sexual relationship with her, even after they broke up. Hernandez never confronted Cardoso about Cardoso's relationship with Rosales.

Hernandez was at Rosales's house late on the night of January 22. Around midnight, someone knocked on the window. Hernandez was curious who was knocking at the window so late, but Rosales would not answer him. The couple argued and Hernandez-who believed Cardoso had been at the window-choked Rosales, then called 911 to have himself arrested.⁴

FN [4]: According to Rosales, she was going to let Hernandez stay the night with her, because he had nowhere to go. There was a knock on her window; when she went to the door, it was Cardoso, who asked to come in. She told him no and to calm down and they would talk, but he did not calm down and just left. She went back inside. Hernandez knew who had come to the door, and was angry about it, so he asked her to have sex. She said no that she was with Cardoso, and that was what started the argument. Hernandez got on top of her on the bed and put his hands around her throat. She yelled for her mother, who told Hernandez to get out.

A police officer came and took Hernandez to the Tulare County-Kings County line and dropped him off. Hernandez telephoned his mother to come and pick him up.⁵

FN [5]: According to Anita Avila, Hernandez's mother, Hernandez called her around midnight and asked if she could pick him up at Rosales's house. He said he was afraid and that one of the defendants was outside with a gun. Avila was unable to go, however. About 30 minutes later, Hernandez called again and asked if Avila could pick him up at the Kings County line. Avila went and got him.

Sometime after 1:00 p.m. on January 23, Avila dropped Hernandez off at Fernot and Lassen, in Hanford, to visit his friend Elijah Crockett. Crockett, who lived at the Kings Garden Apartments in the 1200 block of Fernot Way, and Hernandez spent some time outside the apartments, then Crockett went to his aunt's house on the corner of Fernot. He stayed 30 to 45 minutes, as his uncle, Jose Mims, had just gotten out of the hospital.

Hernandez stood by the curb in front of the house for about 30 minutes, waiting for Crockett. A silver compact car containing defendants and Rosales drove slowly by.⁶

FN [6]: Defendants were in the front seat. Hernandez could not recall which one was driving. Rosales was in the backseat. Hernandez knew Cardoso as Squiddy, but had never talked to either defendant. Hernandez had telephoned Rosales that day to tell her he was coming to town. When he first talked to the police after getting shot, he did not say anything about Rosales being in the car.

Hernandez made eye contact with them. Because they were driving so slowly and looking at him, he felt awkward. He had not had problems with either defendant before that day.

Hernandez watched the car go by. It went to Fernot and Lassen, stopped, and then quickly made a U-turn.⁷

FN [7]: The segment of Fernot Way involved in this case is intersected on one end by Lassen Drive and on the other end by Connie Drive.

Hernandez started running toward the backyard of the house Crockett was in. Things “just didn't feel right,” and he ran through the partly open gate. Someone from the car yelled something, but he did not remember what or know which person yelled. He then got shot. He heard one shot. The next he could remember, he was lying on the ground and Crockett was tying a shirt around his arms and leg. He did not see any guns and did not know who shot him.

Martha Alvarez, who lived in the 1200 block of Fernot Way, was outside with her three young children, who were playing on the sidewalk, when she heard shots from two guns. She turned and saw two hands outside the windows of a silver or gray car. The car went by “really fast” and turned on Connie Drive. She could not tell how many people were in the car or see their faces.

Around 3:00 p.m. on January 23, Tonya Navarro was walking near the corner of Connie Drive and Fernot Way as her two little daughters played in the area. She heard four or five gunshots from a four-door gray car that went by. There were two men inside, but she did not see their faces and could not tell their ethnicity. When the shots were fired, she thought she saw a hand with a gun sticking out the front passenger side window. She could not tell which person in the car pointed the gun. She saw the driver point out of the passenger side when the car went by after she heard the shots.

Jose Quinto was walking on Lassen when he saw Hernandez, a childhood friend he knew as Big C. Hernandez was “just chilling.” As Quinto walked on, he heard gunshots. He ran back to find Hernandez on the ground, shot. Quinto called 911.

Cardoso was Quinto's cousin. Quinto saw him in a silver four-door car on Lassen on the day of the shooting. Quinto did not see if anyone else was with him.

At approximately 3:00 p.m. on January 23, Jose Mims was resting in his home in the 1200 block of Fernot Way when he heard six shots, one right after the other. Mims called the police.

Officer Ricks responded to Mims's residence to find Hernandez on the ground in the backyard. Tourniquets around Hernandez's right arm and leg were covered in blood, and he seemed to be going in and out of consciousness. He appeared to have multiple gunshot wounds. When Ricks asked if Hernandez knew who shot him, Hernandez said he was not sure, but there were two of them in a white two-door car.⁸

FN [8]: All told, Hernandez was shot seven times in his right leg, right thigh, right arm, right shoulder, left shoulder, and right lower back. He underwent two operations. He was unable to walk and was confined to a wheelchair for almost three months, then had to use a walker for another month following the shooting.

When Detective Lemos interviewed him at the hospital following the shooting, Hernandez related Cardoso had been in the driver's seat of the silver vehicle

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