Fuentes v. Gonzales, 1:10-cv-00003-AWI-JLT HC

• Decision Date: 19 December 2012
• Docket Number: 1:10-cv-00003-AWI-JLT HC
• Court: U.S. District Court — Eastern District of California
• Parties: RENE FUENTES, Petitioner, v. FERNANDO GONZALES, Warden, Respondent.

RENE FUENTES, Petitioner,

v.FERNANDO GONZALES, Warden, Respondent.

1:10-cv-00003-AWI-JLT HC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dated: December 19, 2012

FINDINGS AND RECOMMENDATIONS

TO DENY PETITION FOR WRIT OF

HABEAS CORPUS (Doc. 1)

ORDER DIRECTING THAT OBJECTIONS BE

FILED WITHIN TWENTY DAYS

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

PROCEDURAL HISTORY

Petitioner is in custody of the California Department of Corrections and Rehabilitation ("CDCR") serving, inter alia, an indeterminate sentence of life without the possibility of parole, pursuant to a judgment of the Superior Court of California, County of Kern (the "Superior Court"). On August 22, 2007, Petitioner was convicted by jury trial of the following: (1) count one charging willful and premeditated murder of Arredondo (Cal. Pen. Code § 187); (2) counts two, three, and four charging attempted murder of Guzman, Perez, and Calderon (Cal. Pen. Code §§ 187, 664); (3) count five charging firing a gun from a car at persons outside the car (Cal. Pen. Code §12034 ( c); (4) count nine charging that the June 24 shooting constituted participation in a criminal street gang within the meaning of Cal. Pen. Code §186.22(a). In addition, counts one through five eachcontained four enhancement allegations (for a total of twenty such allegations) that Petitioner personally and intentionally fired a gun causing great bodily injury or death pursuant to Cal. Pen. Code §12022.53(d). Counts one through five also each included enhancement allegations stating that Petitioner committed the crimes for the benefit of a criminal street gang. (Cal. Pen. Code §186.22(b)(1)). Counts one through four and count nine included enhancement allegations that Petitioner personally used a gun. (Cal. Pen. Code §12022.5(a)).

Petitioner was sentenced to the following: (1) for count one, murder as enhanced, life in prison without the possibility of parole, plus a consecutive enhancement pursuant to §12022.53(d) of 25-years-to-life; (2) for count two, attempted murder, a consecutive upper term of nine years, a consecutive enhancement pursuant to § 186.22(b)(1) of ten years, and a consecutive enhancement pursuant to § 12022.53(d) of 25-years-to-life; (3) for counts three and four, attempted murder, consecutive terms of two years and four months each, equal to one-third of the middle term, plus consecutive enhancements of three years and four months each pursuant to § 186.22(b)(1), plus 25-years-to-life each pursuant to § 12022.53(d); and (4) for count six, shooting at an inhabited dwelling as enhanced, fifteen-years-to-life. Sentences for counts five, seven, eight, and nine were stayed pursuant to § 654. The total sentence was life without parole plus 115 years to life plus 30 years and four months.

Petitioner subsequently filed a direct appeal in the California Court of Appeal, Fifth Appellate District (the "5th DCA"), which, on March 6, 2009, in a partially published decision, affirmed Petitioner's conviction.¹ Petitioner then filed a petition for review in the California Supreme Court, which, on June 10, 2009, was denied. Petitioner filed the instant petition on December 31, 2009. (Doc. 1). On May 14, 2010, Respondent filed an Answer. (Doc. 14). Petitioner did not file a Traverse. Respondent concedes that the claims herein are exhausted. (Doc. 14, p. 8).

FACTUAL BACKGROUND

The Court adopts the Statement of Facts in the 5th DCA's partially published decision:

Fuentes, who was 18 years old at the time of the shootings, was known in the Bakersfield police as a member of the Varrio Rexland Park (VRP), a Sureno criminal street gang he joined when he was 14. He had the letters "VRP" tattooed across his abdomen, the number 13 on a finger, and three dots near his left eye. The number 13 referred to the 13th letter of the alphabet, M, which stands for Mexican Mafia, the prison gang organization under which Sureno gangs operate. The three dots were also a Sureno symbol. Fuentes claimed VRP membership when he was arrested for the current offenses and during other encounters with the police.

The victims of the shootings were Margarito Perez, Jaime Calderon, Jose Guzman, and the deceased, Jesus Arredondo. Margarito Perez was a member of Cycos 13, a gang based in Los Angeles with about 20 members in and around Bakersfield. Though both are Sureno gangs, VRP and Cycos 13 are rivals. Perez lived with his mother in territory claimed by VRP, two blocks away from Fuentes's house. Perez knew Fuentes from the neighborhood. Calderon was Perez's half-brother. Guzman and Arredondo were friends of Perez.

Episodes of gang-related tension involving Fuentes and some of the victims took place prior to the shootings. Someone fired shots at Guzman's house. Guzman fought with a VRP member known as Silent; Silent pulled a knife. Fuentes came to Guzman's house to say Guzman should get out of the neighborhood. Guzman went to see Fuentes to say he did not want trouble; he believed Fuentes gave his word to cease hostilities, but the hostilities continued. A group of VRP members confronted Calderon, thinking he was Perez; one of the members pulled a gun. Someone painted Cycos 13 graffiti on the sidewalk in front of Fuentes's house. Someone else crossed it out.

The first shooting took place on June 14, 2006. Perez was in his front yard with his 18-month-old nephew. A brown Mitshubishi Galant drove by. Fuentes, wearing a bandanna and a blue Kansas City Royals cap (bearing the legend K.C.) to signify his membership in a Kern County Sureno gang, fired a gun from the front passenger seat. Calderon's car, parked in front of the house, was hit by a bullet. Perez grabbed the child and ran inside.

The second shooting happened on June 24, 2006, in the parking lot of a shopping center at the corner of Ming Avenue and Stine Road. Perez, Calderon, Guzman, and Arredondo drove there together after dark. They got out and watched cars drive around the parking lot. They brought beer to drink and hoped to meet girls.

At about the same time, Fuentes arrived at the parking lot as a passenger in a green Lexus belonging to the parents of Fabian Lopez, a member of a Sureno gang called Bakers 13. Fuentes, Lopez, and Fuentes's cousin Silviero, a VRP members known as Gumby, were in the car. Gumby was driving. As they drove around the parking lot, Fuentes saw Perez's group and became agitated. "[T]here them fools are," he said. "[W]here at," Gumby replied. Lopez said, "[L]et's take off." As Gumby steered the car out of the parking lot onto Ming Avenue, they again passed Perez's group. Lopez then heard shots coming from the back seat, behind him. Only Fuentes was sitting in the back seat.

Before the shots were fired, when the Lexus first passed Perez's group, Guzman saw Fuentes's face in the rear passenger-side window. Fuentes stared at Guzman with an angry look. Guzman expected trouble and pointed the car out to Perez. Subsequently, Perez heard the shots and turned to see Arredondo on the ground bleeding. Guzman was also hit. Perezdrew a gun from his waistband and ran into Ming Avenue, and fired at the departing car.

Arredondo was shot once in the back. The bullet fractured two vertebrae, lacerated the aorta, pierced several loops of the small intestine, and exited his abdomen. He died that night at a hospital. Guzman was shot once through the left shoulder. A second bullet grazed his right cheek.

People v. Fuentes, 171 Cal.App.4th 1133, 1135-1136 (2009); Doc. 1, App. A, pp. 211-212.

DISCUSSION

I. 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). Accordingly, the Court has jurisdiction over this action.

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), cert. denied, 522 U.S. 1008, 118 S.Ct. 586 (1997); Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997), cert. denied, 520 U.S. 1107 (1997), overruled on other grounds by, Lindh v. Murphy, 521 U.S. 320 (holding the AEDPA only applicable to cases filed after statute's enactment). The instant proceedings were initiated by the filing of the original petition on December 31, 2009, after the enactment of the AEDPA, and thus this case is governed by the AEDPA.

II. Legal Standard of Review

A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless he 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 v. Taylor, 529 U.S. at 412-413.

The first prong of federal habeas review involves the "contrary to" and "unreasonable application" clauses of 28 U.S.C. § 2254(d)(1). This prong pertains to questions of law and mixed questions of law and fact. Williams v. Taylor, 529 U.S. at 407-410; Davis v. Woodford, 384 F.3d 628, 637 (9th Cir. 2004). A state court decision is "contrary to" clearly established federal law "if it applies a rule that contradicts the governing law set forth...