Lozano v. Montgomery

• Decision Date: 26 October 2020
• Docket Number: Case No. 2:19-cv-02267-MAA
• Court: U.S. District Court — Central District of California
• Parties: IVAN LOZANO, Petitioner, v. WARREN L. MONTGOMERY, Warden, Respondent.

IVAN LOZANO, Petitioner, v. WARREN L. MONTGOMERY, Warden, Respondent.

Case No. 2:19-cv-02267-MAA

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

October 26, 2020

MEMORANDUM DECISION AND ORDER DENYING FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS

I. INTRODUCTION

On March 19, 2019, Petitioner, an inmate housed in Calipatria State Prison acting pro se, filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 ("Petition"). (Pet., ECF No. 1.) On October 14, 2019, Petitioner filed a First Amended Petition ("FAP"). (FAP, ECF No. 16.) The FAP challenges Petitioner's 2014 conviction in the Los Angeles County Superior Court. (Id. at 2.)¹ On March 26, 2020, Respondent filed an Answer.(Answer, ECF No. 28.) Petitioner filed a Traverse on July 22, 2020. (Traverse, ECF No. 33.)

Pursuant to 28 U.S.C. § 636(c), the parties consented to the jurisdiction of a United States Magistrate Judge. For the reasons stated below, the Court denies the FAP and dismisses this action with prejudice.

II. PROCEDURAL SUMMARY

On December 4, 2013, a Los Angeles County Superior Court jury convicted Petitioner of two counts of conspiracy to commit murder (Cal. Penal Code §§ 182(a)(1), 187(a)) and found true the allegations that the offenses were committed to benefit a criminal street gang (Cal. Penal Code §§ 182(a)(1), 186.22(b)(1)(C), 187(a)). (6 CT 1099, 1102.) The jury also convicted Petitioner of carrying a loaded firearm (Cal. Penal Code § 1203(a)(1)) and found true the allegation that the offense was committed while Petitioner was an active participant in a criminal street gang (Cal. Penal Code § 12031(a)(2)(C)). (6 CT 1100.) The jury further convicted Petitioner of three counts of active participation in a criminal street gang (Cal. Penal Code § 186.22(a)). (6 CT 1101, 1103-04.) The trial court sentenced Petitioner to state prison for a term of fifty years to life.² (6 CT 1248-51.)

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Petitioner appealed his judgment of conviction to the California Court of Appeal. (6 CT 1261-62; LD 3.) The California Court of Appeal issued a reasoned decision reversing the conviction on Count 16 (one of the counts of activeparticipation in a criminal street gang), but otherwise denying Petitioner's appeal and affirming the judgment. People v. Roman, No. B267330, 2018 Cal. App. Unpub. LEXIS 3235 (Cal. Ct. App. May 9, 2018). (LD 6.) The California Supreme Court summarily denied Petitioner's petition for review. (LD 7; LD 8; LD 10.)

On March 19, 2019, Petitioner filed the Petition in this Court. (ECF No. 1.) On the same date, Petitioner also filed a Motion for Stay and Abeyance pursuant to Rhines v. Weber, 544 U.S. 269 (2005) ("Motion"). (Mot., ECF Nos. 3-4.) He then filed a habeas corpus petition in the California Supreme Court raising Ground Three, which was denied without comment or citation of authority. (LD 9; LD 10.) The Court denied the Motion as moot and granted Petitioner leave to amend the Petition. (ECF No. 13.) On October 14, 2019, Petitioner filed the instant FAP. (ECF No. 16.)

III. FACTUAL SUMMARY

Pursuant to 28 U.S.C. § 2254(e)(1), a factual summary from a state appellate court's opinion is entitled to a presumption of correctness that may be rebutted only by clear and convincing evidence that the facts were otherwise. See Hedlund v. Ryan, 854 F.3d 557, 563 (9th Cir. 2017). Petitioner does not challenge the following summary of the evidence presented at trial as described in the California Court of Appeal's decision of Petitioner's direct appeal:³

In 2006 and 2007, the Los Angeles Sheriff's Department conducted a wiretap investigation involving the Compton Varrio Locos Trece gang, commonly called "Locos Trece." The investigation resulted in the indictment of multiple members and associates of thegang. Roman, Rodriguez, and Lozano were tried together.¹ With one exception, the charges pertained to five separate events between December 2006 and May 2007.

¹To distinguish the three individuals tried in this trial from the others with whom they were indicted, we use the terms "defendants" and "co-defendants" to refer to Roman, Rodriguez, and Lozano, and we refer to the other individuals charged in the indictment as "collaborators."

. . . .

[T]he "Lucien Street Incident," occurred on December 17, 2006. In conjunction with this event, both Roman and [Petitioner] were convicted of conspiracy to commit murder (count 5), with a gang enhancement allegation under section 186.22, subd. (b)(1)(C) found true; and active participation in a criminal street gang (§ 186.22, subd. (a) ) (count 7). [Petitioner] was also convicted of carrying a loaded firearm as an active participant in a criminal street gang (fmr. § 12031, subds. (a)(1), (a)(2)(C)) (count 6).

. . . .

Rodriguez and [Petitioner] were charged with four offenses in conjunction with the February 3, 2007 "Baby Shower Incident," so named because the alleged victims were attendees at a baby shower: conspiracy to commit murder (count 14), active participation in a criminal street gang (count 15), and two counts of attempted murder (counts 21 and 22). Both men were convicted on counts 14 and 15, with a true finding on the gang enhancement allegation attached to count 14. The two attempted murder counts against [Petitioner] were dismissed after a mistrial; Rodriguez was convicted on each of those counts but they were subsequently dismissed on the prosecutor's motion after two witnesses recanted.. . . .

Finally, all three defendants were charged with and convicted of actively participating in a criminal street gang (§ 186.22, subd. (a)) between December 2006 and May 2007 (count 16).

(LD 6 at 2-5.)

IV. PETITIONER'S CONTENTIONS

In the FAP, Petitioner asserts three grounds for federal habeas relief:⁴

1. The trial court violated Petitioner's due process rights under the Sixth and Fourteenth Amendments by denying his motion for a new trial based on perjured testimony. (See FAP 5, 39-43.)

2. The trial court denied Petitioner his right to confront witnesses by permitting a gang expert to present hearsay to the jury. (See id. at 5, 43-48.)

3. Appellate counsel provided ineffective assistance by failing to exhaust the claim that the trial court erred when it failed to sua sponte give an unanimity instruction as set forth in CALCRIM No. 3500.⁵ (See id. at 6, 15.)

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V. STANDARD OF REVIEW

Pursuant to 28 U.S.C. § 2254(d) ("Section 2254(d)"), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"):

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the 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.

Pursuant to AEDPA, the "clearly established Federal law" that controls federal habeas review of state-court decisions consists of the holdings, as opposed to the dicta, of Supreme Court decisions "as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000).

Although a state-court decision may be both "contrary to" and "an unreasonable application of" controlling Supreme Court law, the two phrases have distinct meanings. See id. at 391, 412-13. A state-court decision is "contrary to" clearly established federal law if the decision either applies a rule that contradicts binding governing Supreme Court law or reaches a result that differs from the result the Supreme Court reached on "materially indistinguishable" facts. Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam); see also Woods v. Donald, 575 U.S. 312, 317 (2015) ("[I]f the circumstances of a case are only 'similar to' our precedents, then the state court's decision is not 'contrary to' the holdings in those cases."). When a state-court decision adjudicating a claim is contrary to controlling Supreme Court law, the reviewing federal habeas court is "unconstrained by § 2254(d)(1)." See Williams, 529 U.S. at 406.

State-court decisions that are not "contrary to" Supreme Court law may be set aside on federal habeas review "only if they are not merely erroneous, but 'an unreasonable application' of clearly established federal law, or based on 'an unreasonable determination of the facts.'" Packer, 537 U.S. at 11 (quoting Section 2254(d)). A state-court decision that correctly identifies the governing legal rule may be rejected if it unreasonably applies the rule to the facts of a particular case. See Williams, 529 U.S. at 406 (providing, as an example, that a decision may state the Strickland standard correctly but apply it unreasonably). However, to obtain federal habeas relief for such an "unreasonable application," a petitioner must show that the state court's application of Supreme Court law was "objectively unreasonable." Woodford v. Viscotti, 537 U.S. 19, 27 (2002) (per curiam). An objectively unreasonable application is "not merely wrong; even 'clear error' will not suffice." White v. Woodall, 572 U.S. 415, 419 (2014) (quoting Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003)). Instead, "a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, 562 U.S. 86, 103 (2011). The same standard of objective unreasonableness applies where the petitioner is challenging the state court's factual findings pursuant to Section 2254(d)(2). See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) ("[A] decision adjudicated on the merits in a state court and based on a...