Hernandez v. Hill, 1:11-CV-00857 LJO GSA HC

• Decision Date: 29 February 2012
• Docket Number: 1:11-CV-00857 LJO GSA HC
• Court: U.S. District Court — Eastern District of California
• Parties: JOSE HERNANDEZ, Petitioner, v. RICK HILL, Warden, Respondent.

JOSE HERNANDEZ, Petitioner,

v.RICK HILL, Warden, Respondent.

1:11-CV-00857 LJO GSA HC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dated: February 29, 2012

FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS

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

BACKGROUND

Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Kern, following his conviction by jury trial on February 23, 2009, of: second degree murder; gross vehicular manslaughter; driving under the influence causing great bodily injury; driving under the influence with a blood-alcohol content over 0.08 percent causing great bodily injury; engaging in a speed contest causing bodily injury; willful cruelty to a child; and driving on a suspended or revoked license with a prior conviction. (CT¹ 693-694, 899.) The jury also determined that Petitioner had suffered several prior DUI convictions. (CT 713-714.) On May 12, 2009, Petitioner was sentenced to anindeterminate prison term of fifteen years to life on the gross vehicular manslaughter count; sentences on all other counts were stayed. (CT 899.)

Petitioner filed a timely notice of appeal. On July 2, 2010, the California Court of Appeal, Fifth Appellate District ("Fifth DCA"), affirmed the judgment. (See Lodged Doc. No. 4.) Petitioner filed a petition for review in the California Supreme Court. (See Lodged Doc. No. 5.) On September 15, 2010, the petition was summarily denied. (See Lodged Doc. No. 6.)

On March 10, 2011, Petitioner filed the instant federal habeas petition. He presents three (3) grounds for relief: 1) The trial court erred in failing to instruct the jury on Cal. Penal Code § 191.5(d); 2) The trial court erred in failing to provide a limiting instruction regarding prior drunk driving convictions; and 3) The evidence was insufficient to prove causation. On September 16, 2011, Respondent filed an answer to the petition. Petitioner did not file a traverse.

STATEMENT OF FACTS²

On October 14, 2007, Hernandez headed to the home of Bridget and Ken Martinez with his two-year-old daughter, Ciara.FN2 While there, he drank three or four 24-ounce beers. Everyone left the house about 1:30 p.m. to drive to River Walk Park on Stockdale Highway for a child's birthday party. On the way to the park, Hernandez and Ken stopped and purchased more beer.

FN2. The record contains two spellings for Hernandez's daughter's name-Ciara and Sierra. For purposes of this opinion, we will use the spelling "Ciara."

While at River Walk Park, Hernandez consumed three more beers. Hernandez was stumbling, having trouble walking, and appeared drunk. Bridget offered to drive Ciara home because she thought Hernandez was intoxicated. An argument ensued between Hernandez and Bridget, and Hernandez drove off in his sport utility vehicle (SUV) with Ciara. As Hernandez drove off, Ciara was not in a car seat and the SUV was hitting the curb. Bridget called 911 to report that Hernandez was "really intoxicated" and driving.

Hernandez drove east on Stockdale Highway, where the speed limit is 45 miles per hour. The LeLouis family also was driving east on Stockdale Highway at the same time. The LeLouises saw two vehicles, one an SUV, race by them going 80 to 90 miles per hour. The two vehicles sped up and began inching in front of each other, changed positions about 10 times, and appeared to be "competing for first."

As the two racing vehicles approached the intersection of Stockdale and Fairway,the SUV ran a red light and broadsided a Mercedes traveling through the intersection. Hernandez was driving the SUV.

As a result of the collision, the passenger in the Mercedes, Barbara Blair, died of blunt force injuries. John Blair, the driver of the Mercedes, suffered life-threatening injuries, including two collapsed lungs, multiple rib fractures, and a fractured clavicle. Ciara suffered a deep laceration to her forehead that required two layers of stitches.

When police arrived at the scene, Hernandez had the smell of alcohol on his breath, red watery eyes, and slurred speech. He told officers he had drunk two beers. A blood-alcohol screening showed Hernandez had a 0.195 percent blood-alcohol content. A blood sample was taken and when tested showed a 0.194 blood-alcohol level.

Detective Don Cegielski, a trained accident reconstructionist, was dispatched to the scene of the collision. Cegielski estimated the SUV was traveling at 72.6 miles per hour when it struck the Mercedes. An event recorder retrieved from the SUV showed the SUV had been traveling at 89 miles per hour five seconds prior to the collision. Cegielski opined that the collision was caused by Hernandez's intoxication, his failure to stop for the red light, and the speed of the SUV.

Cegielski interviewed Hernandez. Hernandez told Cegielski he had had two 32-ounce beers before the collision. Hernandez admitted he had prior DUI's (driving under the influence), had a suspended license, and previously had been advised that if he was driving drunk and was in a collision that killed someone, he could be charged with murder. Hernandez admitted he should not have been drinking and driving, but denied he was racing and claimed he was going about 50 miles per hour.

Hernandez was charged with (1) second degree murder, (2) gross vehicular manslaughter with a prior conviction under Vehicle Code section 23152 and former Vehicle Code section 23175, (3) driving under the influence and causing bodily injury, (4) driving with a blood-alcohol content in excess of 0.08 percent and causing bodily injury, (5) engaging in a speed contest and causing bodily injury, (6) causing a child to suffer physical pain or mental suffering, and (7) driving on a suspended or revoked license with a prior conviction under Vehicle Code section 14601.2, subdivision (d)(2).

During the trial, the People introduced evidence of seven prior DUI convictions Hernandez had suffered. Hernandez's probation officer at the time of trial testified that he had told Hernandez that if he drove while under the influence of alcohol and killed someone, he could be charged with murder.

Private investigator Andrew Hanson interviewed Bridget, who denied telling police she saw Hernandez stumbling at River Walk Park. Hanson also interviewed Randy Byrd, whose child's party had been at River Walk Park. Byrd stated he did not see Hernandez drink while at River Walk Park and he did not believe Hernandez was intoxicated.

(See Lodged Doc. No. 4.)

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 or lawsor 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 U.S. Constitution. The challenged conviction arises out of Kern County Superior Court, which is located within the jurisdiction of this Court. 28 U.S.C. § 2254(a); 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. Lockyer v. Andrade, 538 U.S. 63, 70 (2003); Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), cert. denied, 522 U.S. 1008 (1997), quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996), cert. denied, 520 U.S. 1107 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320 (1997) (holding 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.

II. Standard of Review

Under the AEDPA, relitigation of any claim adjudicated on the merits in state court is barred unless a 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); Harrington v. Richter, ___ U.S. ___, ___, 131 S.Ct 770, 784, 178 L.Ed.2d 624 (2011); Lockyer, 538 U.S. at 70-71; Williams, 529 U.S. at 413.

As a threshold matter, this Court must "first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer, 538 U.S. at 71, quoting 28 U.S.C. § 2254(d)(1). In ascertaining what is "clearly established Federal law," this Court must look to the "holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams, 592 U.S. at 412. "In other words, 'clearly established Federal law' under § 2254(d)(1) is the governing legal principle or principlesset forth by the Supreme Court at the time the state court renders its decision." Id. In addition, the Supreme Court decision must "'squarely address [] the issue in th[e] case' or establish a legal principle that 'clearly extend[s]' to a new context to the extent required by the Supreme Court in . . . recent decisions"; otherwise, there is no clearly established Federal law for purposes of review under AEDPA. Moses v. Payne, 555 F.3d 742, 754 (9th Cir.2009), quoting Wright v. Van Patten, 552 U.S. 120, 125 (2008); see Panetti v. Quarterman, 551 U.S. 930 (2007); Carey v. Musladin, 549 U.S. 70 (2006). If no clearly established Federal law exists, the inquiry is at an end and the Court must defer to the state court's decision. Carey, 549 U.S. 70; Wright, 552 U.S. at 126; Moses, ...