Hernandez v. Lewis, Case No. 1:12-cv-01661 DAD MJS (HC)

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Writing for the CourtMichael J. Seng UNITED STATES MAGISTRATE JUDGE
PartiesJESUS CIANEZ HERNANDEZ, Petitioner, v. GREG LEWIS, Warden, Respondent.
Docket NumberCase No. 1:12-cv-01661 DAD MJS (HC)
Decision Date06 December 2016

JESUS CIANEZ HERNANDEZ, Petitioner,
v.
GREG LEWIS, Warden, Respondent.

Case No. 1:12-cv-01661 DAD MJS (HC)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

December 6, 2016


FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS

Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus under 28 U.S.C. § 2254. Petitioner is represented by Linnea Johnson. Respondent, warden of Pelican Bay State Prison, is represented by David Eldridge of the office of the California Attorney General. Respondent declined magistrate judge jurisdiction under 28 U.S.C. § 636(c). (ECF No. 20.)

I. Procedural Background

Petitioner is in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Stanislaus. On January 11, 1991, Petitioner was convicted by a jury of first degree murder with special

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circumstances for financial gain and for use of a firearm, and conspiracy to commit murder. (ECF No. 50-5 at 72.) On January 22, 1991, the penalty phase of the trial began. (Clerk's Tr. Vol. 4 at 921.) The jury returned a death verdict against Petitioner on February 1, 1991. (Clerk's Tr. Vol. 5 at 99-91.) On March 21, 1991, Petitioner was sentenced to death. (ECF No. 50-5 at 72.)

Petitioner filed his automatic appeal with the California Supreme Court on August 5, 1999. (ECF Nos. 42, 42-1, 42-2.) On June 2, 2003, the California Supreme Court reversed the death sentence and remanded the case to the Stanislaus County Superior Court. People v. Hernandez, 30 Cal.4th 835 (2003). The California Supreme Court affirmed the convictions, but vacated the finding of special circumstances and reversed the death penalty verdict. (Id.)

In August 2006, upon remand, the Stanislaus County Superior Court imposed a sentence of life in prison without possibility of parole on the murder conviction, 25 years to life on the conspiracy conviction, three years on each of the firearm-use enhancements, and monetary fines. People v. Hernandez, 2007 Cal. App. Unpub. LEXIS 8324, 2, 2007 WL 2994646 (Cal. App. Oct. 16, 2007). On direct appeal, the California Court of Appeal, Fifth Appellate District modified the monetary fine amount but otherwise affirmed the judgment on October 16, 2007. Id.

While the automatic appeal was pending, Petitioner pursued collateral relief in the form of petitions for writ of habeas corpus in state court. On May 31, 2002 and July 15, 2003, Petitioner filed petitions for writ of habeas corpus in the California Supreme Court. On March 2, 2005, both petitions were denied. See Hernandez on H.C., 2005 Cal. LEXIS 2350 (Cal. Mar. 2, 2005); Hernandez on H.C., 2005 Cal. LEXIS 2351 (Cal. Mar. 2, 2005).

On March 7, 2006, Petitioner filed a second supplemental petition in the California Supreme Court. On May 9, 2007, the California Supreme Court issued an order to show cause why relief should not be granted returnable to the Stanislaus County Superior Court. (See Pet., Ex. 278, ECF No. 1-12 at 8.) An evidentiary hearing was held on

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February 5, 2008, and on June 4, 2008, the Superior Court denied the writ. (Pet., Exs. R-S, ECF No. 1-3 at 89-195.)

On July 16, 2008, Petitioner filed a habeas petition in the Fifth District Court of Appeal. (Mot. To Dismiss, Ex. C, ECF No. 24.) The court denied the petition on April 8, 2010 and issued its remittitur on May 10, 2010. (Id.) On August 6, 2010, Petitioner filed a petition in the California Supreme Court; it was denied on October 12, 2011. (Mot. to Dismiss, Ex. D.)

On October 10, 2012, Petitioner filed the instant federal petition for writ of habeas corpus in this Court. The Court appointed Petitioner counsel and ordered Respondent to file a response on November 13, 2012. (ECF Nos. 6-7.) On February 4, 2013, Respondent filed a Motion to Dismiss the petition as being filed outside the one-year limitations period prescribed by 28 U.S.C. § 2244(d). (Mot. to Dismiss.) The Court found that Petitioner was entitled to equitable tolling of the one year limitations period and denied the motion to dismiss on September 30, 2013. (ECF Nos. 27, 30.) On October 3, 2013, the Court ordered Respondent to file an answer to the petition. (ECF No. 33.) Respondent filed an answer on January 27, 2014. (ECF No. 58.) Petitioner filed a traverse on June 27, 2014. (ECF No. 67.) The matter stands ready for adjudication.

The petition raised seven grounds for relief based on the following constitutional violations:

1) That the prosecutor failed to disclose evidence favorable to the defense at trial;

2) That Petitioner's conviction was obtained by the use of false testimony;

3) That Petitioner was denied the right to conflict-free counsel;

4) That Petitioner's counsel was ineffective at the guilt phase of trial;

5) That the prosecution engaged in misconduct resulting in his conviction;

6) That Petitioner is innocent; and

7) That Petitioner is entitled to relief based on cumulative error.

However, in Petitioner's traverse, he withdrew claims three through six. (Id. at 11-

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12.) Accordingly, only claims 1, 2, and 7 remain pending before the court.

II. Statement of Facts1

A. Guilt Phase--Prosecution's Case

Alfredo Padilla and Brenda Prado were heroin and cocaine dealers who lived in a house in Grayson, a small town in Stanislaus County. Also living in the house (hereafter the Grayson house) were Betty Lawson and her boyfriend, Dallas White.

The murder victim, Esther "Cussy" Alvarado, was a heroin addict and prostitute, who would buy heroin from Padilla and Prado and occasionally stay at their house. They later banned her from the house because she had not paid for drugs they had given her, and they suspected she had stolen a radio from the house.

On January 4, 1988, between 10:30 and 11:00 p.m., Anthony Ybarra (Ybarra) and his brother Gilbert came to the Grayson house. Gilbert, who was drunk, brought a lawn mower that he had stolen earlier in the day from Johnny Alvarado (no relation to murder victim Esther Alvarado) and which he hoped to exchange for drugs. Ybarra also wanted to buy drugs, but he knew Padilla and Prado would not sell to him because they suspected him of being a police informant.

When Ybarra and Gilbert arrived at the house, they saw Dallas White outside. Ybarra told White he wanted to buy heroin. While they were standing outside talking, Johnny Alvarado drove up, retrieved his lawn mower from Gilbert, and headed home. Gilbert accompanied him, apparently hoping to persuade him not to report Gilbert's theft of the lawn mower to the police. Ybarra remained outside the Grayson house.

As Ybarra and White continued their conversation, Ybarra saw defendant, whom he had known for many years, drive up to Guzman's Bar, some 500 feet away. A woman with long hair was with defendant. After dropping off the woman at the bar, defendant drove to the Grayson house. Ybarra feared defendant because, while working for the police, Ybarra had "set up" the boyfriend of defendant's sister and had testified against him. He therefore hid behind a car as defendant and White entered the house.

Ten to 15 minutes later, Ybarra saw defendant, Padilla, and Prado go out the back door of the house and enter a small trailer. Ybarra crept through a hole in a fence and peeked through a window of the trailer, hoping to find out where Padilla and Prado hid their drugs so he could steal them. Ybarra heard defendant say, "that bitch, Cussy [Alvarado]" was waiting for him at Guzman's Bar, and Prado and Padilla complained that Alvarado had "ripped them off." Defendant offered to beat up

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Alvarado, and when Prado and Padilla expressed interest, he said he would kill her "for the right price." Prado replied she would give defendant two grams of heroin and an eighth of an ounce of cocaine to kill Alvarado. Defendant said, "Consider it done," and he and Padilla shook hands. Defendant, Prado, and Padilla then left the trailer and returned to the house. Shortly thereafter, Ybarra watched as defendant left the house and got in his car, drove back to Guzman's Bar, picked up Alvarado, and drove off with her between 11:30 and 11:45 p.m. Dallas White then gave Ybarra a ride home.

According to Lorenzo Guzman, the owner of Guzman's Bar, Esther Alvarado left his bar between 11:30 and midnight, after staying 15 to 20 minutes. Guzman saw her enter the passenger side of what he thought was a tan Oldsmobile car.

Between midnight and 1:00 a.m., Rudy Galvan was driving home from work when he saw a body lying by the road. He drove to Guzman's Bar, about a mile away, and asked Guzman to call the police. Stanislaus County Sheriff's deputies responding to the call found Esther Alvarado's body. She had been shot to death. Alvarado's right fingers were muddy, and what appeared to be scratch marks were in the mud next to her body. A thick track of mud was on the road, made by two wheels of a car.

Later that night, Homicide Detective Michael Dulaney drove to the nearby town of Patterson. At the home of Guadalupe Porter, defendant's sister, Dulaney saw a black and gold Oldsmobile, which belonged to defendant and his sister. The car had a large quantity of wet mud on the left side and the rear bumper; there also was mud on the gas pedal. On the dashboard was a box of Winchester .22-caliber cartridges. On the floor of the car was a similar .22-caliber bullet, and an expended .22-caliber casing was under the seat. On the ground near the car were two shotgun shell casings. The police entered Porter's house and arrested defendant.

Later that morning, Deputy Sheriff Richard McFarren questioned defendant. Defendant said that during the previous night he had taken a woman named Ana (identified by other witnesses as Ana Najera) to a motel in Modesto, dropped her off, and returned to his sister's house. He denied going to the Grayson house. When asked about the mud on the car, defendant said that after dropping off Najera, he had driven through mud on his way to the
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