Herrera v. Biter

• Decision Date: 24 March 2017
• Docket Number: Case No. CV 13-7965 SS
• Court: U.S. District Court — Central District of California
• Parties: EDGARDO HERRERA, Petitioner, v. MARTIN D. BITER, Warden, Respondent.

EDGARDO HERRERA, Petitioner, v. MARTIN D. BITER, Warden, Respondent.

Case No. CV 13-7965 SS

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

March 24, 2017

MEMORANDUM DECISION AND ORDER

I.INTRODUCTION

Effective October 17, 2013, Edgardo Herrera ("Petitioner"), a California state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 ("Petition").¹ (Dkt. No. 1). On March 3, 2014,Respondent filed an Answer to the Petition with an accompanying Memorandum of Points and Authorities ("Ans. Mem."). (Dkt. No. 12). On December 22, 2015, Petitioner filed a First Amended Petition for Writ of Habeas Corpus, and he filed the operative Second Amended Petition ("SAP") effective January 21, 2016. (Dkt. Nos. 24, 38-39, 41). On March 11, 2016, Respondent filed a Supplemental Answer to the SAP as well as a memorandum of points and authorities in support of the Supplemental Answer ("Supp. Ans. Mem."). (Dkt. No. 46). Respondent has also lodged documents from Petitioner's state proceedings, including the Clerk's Transcript ("CT") and Reporter's Transcript ("RT"). (Dkt. Nos. 13, 17, 31). Petitioner filed a Reply on April 8, 2016. (Dkt. No. 48).

The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. Nos. 9, 14-15). For the reasons discussed below, the Petition is DENIED and this action is DISMISSED WITH PREJUDICE.

II.PRIOR PROCEEDINGS

On December 7, 2010, a Los Angeles County Superior Court jury convicted Petitioner of three counts of second-degree robbery in violation of California Penal Code ("P.C.") § 211 and also found it to be true that a principal personally used a firearm during the robberies within the meaning of P.C. § 12022(a)(1) and that Petitioner committed the robberies for the benefit of, at the direction of, or in association with a criminal street gang withthe specific intent to promote, further or assist in criminal conduct by gang members within the meaning of P.C. § 186.22(b).² (CT 403-05, 409-11; RT 4805-08). On January 15, 2011, Petitioner admitted he had suffered a prior "strike" conviction under California's Three Strikes Law, P.C. §§ 667(b)-(i) & 1170.12(a)-(d), and a prior serious felony conviction within the meaning of P.C. § 667(a)(1). (CT 414; RT 5101-03). On March 10, 2011, the trial court sentenced Petitioner to a prison term of 30 years. (CT 421-24, 426-27; RT 5406-07).

Petitioner appealed his convictions and sentence to the California Court of Appeal (2d App. Dist., Div. 7), which affirmed the judgment in an unpublished decision filed August 9, 2012. (Lodgments A1, A5-A7). On September 11, 2012, Petitioner filed a petition for review in the California Supreme Court, which denied the petition on October 31, 2012. (Lodgments B1-B2).

Effective July 31, 2014, Petitioner filed a petition for writ of habeas corpus in Los Angeles County Superior Court, which denied the petition on November 20, 2014. (Lodgment C1; Dkt. No. 34-1 at 39-40). Petitioner thereafter filed a petition for writ of habeas corpus in the California Court of Appeal, which denied the petition on January 14, 2015. (Dkt. No. 34-1 at 42). Effective February 10, 2015, Petitioner filed a habeas corpus petition in theCalifornia Supreme Court, which denied the petition on July 8, 2015. (Dkt. Nos. 34-1, 37).

III.FACTUAL BACKGROUND

The following facts, taken from the California Court of Appeal's unpublished decision on direct review, have not been rebutted with clear and convincing evidence and are therefore presumed correct. 28 U.S.C. § 2254(e)(1); Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009).

In October 2009[,] Mario Frias, Jesus Nunez, Arturo Frias, and Victor Vasquez were walking to a party when they were approached by two men. One asked Mario Frias where he was from, and he responded, "Nowhere," signifying that he was not a gang member. The man demanded that Mario Frias give him the contents of his pockets. Mario Frias refused and slapped the man's hand away when he reached for Frias's pocket. The man hit Mario Frias in the head with a pistol. He went through Nunez's pockets and hit Nunez in the head with the gun.

Mario Frias ran across the street, but two men jumped from a nearby car, demanded his possessions, then attacked him when he claimed to have nothing to give them. [Petitioner] was the driver of thecar; he remained in the car and gave orders to the assailants, including an instruction to be sure to take the men's possessions. [Petitioner] was holding a shiny, rounded object that was shaped like a bat and that made a sound like a gun being loaded. The Frias brothers and Nunez were beaten and robbed. Three of the attackers left in the car [Petitioner] drove.

(Lodgment A1 at 2).

IV.PETITIONER'S CLAIMS

The Petition raises seven grounds for federal habeas relief. In Ground One, Petitioner contends he was denied due process of law because there was insufficient evidence to prove his identity as one of the robbers. (SAP at 5).³ In Ground Two, Petitioner alleges he was denied due process of law because there was insufficient evidence to prove the gang enhancements since the prosecution failed to establish a "pattern of criminal gang activity" and the gang's "primary activities." (Id.). In Ground Three, Petitioner asserts the trial court denied him due process of law when it instructed the jury that it could consider evidence of Petitioner's gang activity for the purpose of deciding identity, which Petitioner claims was tantamount to a directed verdict that Petitioner committed the robberies. (Id. at 5-6). In Ground Four,Petitioner alleges: (a) the trial court violated the Confrontation Clause by admitting gang expert Detective Eduardo Aguirre's testimony that Petitioner had told other officers he was a Lott 13 gang member named Fatty; and (b) admission of Detective Aguirre's expert testimony deprived Petitioner of due process of law. (Id. at 6-16). In Ground Five, Petitioner maintains that Detective Aguirre employed unduly suggestive photographic identification procedures to induce Arturo Frias to identify Petitioner as one of the robbers. (Id. at 17-33). In Ground Six, Petitioner alleges he received ineffective assistance of counsel when his trial counsel failed to object that Detective Aguirre's testimony violated the Confrontation Clause and failed to object to the unduly suggestive photographic identification procedures. (Id. at 33). In Ground Seven, Petitioner asserts that his appellate counsel rendered ineffective assistance by failing to raise Grounds Four through Six. (Id.).

V.STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") "bars relitigation of any claim 'adjudicated on the merits' in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2)." Harrington v. Richter, 562 U.S. 86, 98 (2011). Under AEDPA's deferential standard, a federal court may grant habeas relief only if the state court adjudication was contrary to or an unreasonable application of clearly established federal law, as determined by the Supreme Court, or was based uponan unreasonable determination of the facts. Id. at 100 (citing 28 U.S.C. § 2254(d)). "This is a difficult to meet and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt[.]" Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citations and internal quotation marks omitted).

Petitioner raised Grounds One through Three in his petition for review to the California Supreme Court, and he raised Grounds Four through Seven in his habeas corpus petition to the California Supreme Court, which denied the petitions without comment or citation to authority. (Lodgments B1-B2; Dkt. Nos. 34-1, 37). The Court "looks through" the California Supreme Court's silent denials to th43e last reasoned decision as the basis for the state court's judgment. See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) ("Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground."); Cannedy v. Adams, 706 F.3d 1148, 1159 (9th Cir. 2013) ("[W]e conclude that Richter does not change our practice of 'looking through' summary denials to the last reasoned decision - whether those denials are on the merits or denials of discretionary review." (footnote omitted)), as amended, 733 F.3d 794 (9th Cir. 2013). Therefore, the Court will consider the California Court of Appeal's reasoned opinion addressing Grounds One through Three,⁴ and the Los AngelesCounty Superior Court's opinion addressing Grounds Four and Six.⁵ Berghuis v. Thompkins, 560 U.S. 370, 380 (2010). However, because no state court has provided a reasoned decision as to Ground Seven, this Court must conduct "an independent review of the record" to determine whether the decision to deny those claims was contrary to, or an unreasonable application of, clearly established federal law. Murray v. Schriro, 745 F.3d 984, 996-97 (9th Cir. 2014); Walker v. Martel, 709 F.3d 925, 939 (9th Cir. 2013). Finally, the Court will address Ground Five de novo.⁶ See Thompkins, 560 U.S.at 390 ("Courts can . . . deny writs of habeas corpus under § 2254 by engaging in de novo review when it is unclear whether AEDPA deference applies, because a habeas petitioner will not be entitled to a writ of habeas corpus if his or her claim is rejected on de novo review[.]"); Norris v. Morgan, 622 F.3d 1276, 1290 (9th Cir. 2010) (affirming denial of habeas corpus petition when claim failed even under de novo review); Frantz v. Hazey, 533 F.3d 724, 735-37 (9th Cir. 2008) (en banc) (a federal habeas court can review constitutional issues de novo before performing a § 2254(d)(1) analysis).⁷

VI.DISCUSSION

A. Petitioner Is Not Entitled To Habeas Relief On His Insufficient Evidence Claims

In Ground One, Petitioner...