Garcia v. McDowell

• Decision Date: 14 April 2023
• Docket Number: 16-05301 BLF (PR)
• Parties: ESEQUIEL PAUL GARCIA, Petitioner, v. NEIL McDOWELL, Warden, Respondent.
• Court: U.S. District Court — Northern District of California

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ESEQUIEL PAUL GARCIA, Petitioner, v. NEIL McDOWELL, Warden, Respondent.

No. 16-05301 BLF (PR)

United States District Court, N.D. California

April 14, 2023

ORDER DENYING SECOND AMENDED PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OFAPPEALABILITY DIRECTIONS TO CLERK

BETH LABSON FREEMAN, United States District Judge.

Petitioner is proceeding pro se on a second amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his 2010 criminal judgment. Dkt No. 35 (“Amended Petition”). Upon consideration of the amended petition, Respondent's answer (Dkt No. 56), and Petitioner's traverse (Dkt No. 83), the amended petition will be DENIED.

I. BACKGROUND

This case arises from a love triangle involving Petitioner, Tessa Donnelly, and her ex-boyfriend, Mark Achilli. Angry that Donnelly and Achilli wanted to renew their relationship Petitioner recruited his employee, Daniel Chaidez (“Daniel”), to help him “get rid of a problem,” which Daniel understood to mean kill Achilli. Daniel then coordinated the hit job with his cousin, Miguel Chaidez (“Miguel”)^[1], and a third man, Lucio Estrada. On March 14, 2008, Estrada shot Achilli multiple times, killing him. For this, Petitioner paid Daniel $9,500.

Petitioner was charged with one count of first degree murder (Cal. Penal Code § 187) with the special circumstance of soliciting the murder (Cal. Penal Code § 190.2(a)(15). Dkt No. 56-8 at 203-05. He was tried jointly with Miguel and Estrada^[2], and the trial commenced on September 1, 2010. Dkt No. 56-9 at 30-31. On October 26, 2010, a jury convicted Petitioner of first degree murder and found true the special circumstance of solicitation of first degree murder. Dkt No. 56-9 at 235-36. The jury also found Miguel and Estrada guilty of first degree murder, further finding as to Estrada true special circumstances that he committed an intentional murder for financial gain (Cal. Penal Code § 190.2(a)(1)) and while lying in wait (Cal. Penal Code § 190.2(a)(15)) and that he personally and intentionally discharged a firearm proximately causing death (Cal. Penal Code § 12022.53(d)). Id.

On February 2, 2011, Petitioner's trial counsel, Harry Robertson, moved for a new trial. Dkt No. 57 at 120-27. On February 23, 2011, Robertson declared a conflict, and the court appointed new counsel, Edward Sousa, to represent Petitioner on his motion for a new trial. Id. at 131. Attorneys Sousa and Gregory Ward filed a motion for new trial on December 22, 2011. Dkt No. 57-1 at 4-107. On May 10, 2012, the trial court denied the new trial motion and sentenced Petitioner to life in prison without the possibility of parole. Dkt No. 59-23 at 8-60.

With the assistance of appointed appellate counsel Mark Greenberg, Petitioner simultaneously pursued an appeal and a petition for writ of habeas corpus in the California Court of Appeal (the “state appellate court”). Dkt Nos. 58-3 at 1-99; 58-4 at 3-65; 58-6 at 52. The state appellate court affirmed the judgment and denied the habeas petition on March 2, 2015.^[3] Dkt No. 58-4 at 76-159; People v. Garcia, No. H036346, 2015 WL 917801 (Cal.Ct.App. Mar. 2, 2015) (unpublished). Petitioner's subsequent petition for rehearing was also denied, though the state appellate court did issue an order modifying the opinion with no change in the judgment. Dkt No. 58-5 at 3-17, 22.

Petitioner proceeded to the California Supreme Court in pro per, filing petitions for review of the direct appeal and of the denial of the petition for writ of habeas corpus. Dkt No. 58 at 3-Dkt No. 58-2 at 226. After requesting and receiving an answer to the direct appeal and an informal response to the habeas matter, the California Supreme Court summarily denied both petitions on June 13, 2018. Dkt No. 58-6 at 98-102.

When the last state court to adjudicate a federal constitutional claim on the merits does not provide an explanation for the denial,” the federal court should ‘look through' the unexplained decision to the last related state-court decision that does provide a relevant rationale.” Wilson v. Sellers, __ U.S. __, 138 S.Ct. 1188, 1192 (2018). “It should then presume that the unexplained decision adopted the same reasoning.” Id. Here, the California Supreme Court did not provide an explanation for its denial of the petition for review. See Dkt No. 30-2 at 339. Accordingly, this Court will “look through” the California Supreme Court's decision to the state appellate court's decision. See Skidmore v. Lizarraga, No. 14-CV-04222-BLF, 2019 WL 1245150, at *7 (N.D. Cal. Mar. 18, 2019) (applying Wilson). Moreover, where an issue was raised for the first time at the California Supreme Court, this Court “must determine what arguments or theories supported or, as here, could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the United States Supreme Court].” Harrington v. Richter, 562 U.S. 86, 102 (2011).

Petitioner filed the instant federal habeas petition on September 15, 2016 and is proceeding on a second amended petition filed on June 19, 2019. See Dkt Nos. 1, 35. Respondent filed an answer on June 19, 2020 (Dkt No. 56), and Petitioner filed a traverse on July 2, 2021 (Dkt No. 83).

II. STATEMENT OF FACTS

The following background facts are taken from the opinion of the state appellate court on direct appeal:

Physical Evidence and Eyewitness Testimony

At approximately 11:40 a.m. on March 14, 2008, after he was told by a man that he had heard eight gunshots fired in rapid succession from a semi-automatic hand-gun, Los Gatos Police Officer Daniel Accardo approached the driveway of 18400 Overlook. As he did so a white van approached; the driver of the van said he had heard the gunshots. As the officer drove into the driveway an elderly gentleman flagged down the officer and told him that there was a badly injured man near a carport.

At 18400 Overlook, Officer Accardo saw a man lying face down in a carport; the man was bleeding from multiple places and there were spent shell casings on the ground. Emergency personnel arrived and declared Achilli dead. Officer Accardo was able to identify Achilli from the driver's license the officer found in Achilli's wallet, which firefighters had collected from a pocket in Achilli's pants.

Approximately two hours after the shooting, Los Gatos Police Department Corporal Kalipona Kauweloa and other officers collected evidence from the area surrounding the shooting scene. Specifically, in various different places they found a torn photograph of Achilli, a gun cleaning cloth, a black jacket recovered on Chestnut Avenue, [FN2] two black gloves a gun magazine, a black Los Angeles Dodger's baseball cap, a gun magazine with two unspent .380 cartridges, and a page of printed driving directions from Fish Canyon Road to 18400 Overlook. The officers did not locate a gun.

[FN2: Testimony at trial showed that Chestnut Avenue is north of Overlook.]

Los Gatos Police Officer Steve Walpole collected .380 shell casings, .380 bullet fragments, and a bullet jacket at the scene; all were recovered from near where Achilli's body had been.[FN3] Officer Walpole took a photograph of a bullet hole that was in a drain pipe. Officer Walpole removed a computer from unit No. 36[FN4] and collected a cellular telephone that had been recovered from amongst Achilli's bloody clothing. Achilli's body was removed from the scene by the coroner at 4:53 p.m.

[FN3: Paramedics moved Achilli's body approximately 12 feet east of where he was originally lying.]

[FN4: Officer Accardo established that unit No. 36 was where Achilli lived.]

On the day after the shooting, Los Gatos Police Officer Sam Wonnell retrieved a Lorcin .380 semi-automatic pistol with no rounds in the magazine from some ground ivy located in front of some of the residences at 18400 Overlook. The next day, close to unit No. 35, Officer Wonnell found a .380-caliber shell casing.

On March 28, 2008, Santa Clara Police Sergeant Nicolas Richards served a search warrant on Miguel's residence in Duarte, California. Sergeant Richards seized a Dell laptop computer, a copier/fax machine, a gun cleaning kit, $3,240 cash, an Airsoft gun,[FN5] and a rifle. In the bedroom of the residence he located identifying information for Miguel. Sergeant Richards searched a Dodge Durango registered to Jose Chaidez; a MoneyGram receipt for $2,500 was found inside.

[FN5: Sergeant Richards testified that the Airsoft gun was not a real firearm.]

On March 29, 2008, California Highway Patrol Officer Edward Whitfield conducted a search of Estrada's Burbank apartment. There were papers belonging to Estrada in the apartment. Officer Whitfield recovered two baggies of marijuana, a baggie of various narcotics, a book entitled “Surgical Speed Shooting,” a book entitled “The Gun Digest, Book of Combat Handgunnery,” and a book entitled “Hit Man A Technical Manual for Independent Contractors.” In addition, Officer Whitfield found two notebooks, one purple and one gray; a black bag containing $2,000 cash; and a black baseball cap with “LA” on it, which he found hanging on a hook on the back of a door. The notebooks were marked as exhibit Nos. 92 (the purple notebook) and 93 (the gray notebook), and two pages of notes taken from exhibit No. 93 were marked as exhibit No. 91. On one of the pages inside the purple notebook the name “Chaidez” was written. In the pages of the gray notebook was a letter addressed to Estrada. One of the pages of notes taken from the gray notebook included phrases such as “surveillance,” “Fast Fast Fast,” “Really Fast,” “military style precision,” “gloves, disguise,” “fake wigs,” “stay calm,” “calm and precise,” and

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