Luna v. Kernan

• Decision Date: 26 October 2016
• Docket Number: No. 2:04-cv-0627 MCE GGH P,2:04-cv-0627 MCE GGH P
• Court: U.S. District Court — Eastern District of California
• Parties: BENITO JULIAN LUNA Petitioner, v. SCOTT KERNAN Respondent.

BENITO JULIAN LUNA Petitioner, v. SCOTT KERNAN Respondent.

No. 2:04-cv-0627 MCE GGH P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

October 26, 2016

FINDINGS AND RECOMMENDATIONS

Introduction and Summary

Petitioner is a state prisoner represented by counsel, proceeding with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

Petitioner challenges a judgment of conviction entered against him on December 17, 2001 in the Sacramento County Superior Court for first degree murder and attempted robbery. The court after a bench trial also found true personal and intentional discharge of a firearm. Petitioner was sentenced to life without the possibility of parole and a consecutive term of 25 years to life.

This unfortunately delayed case is now ready for decision. The reasons for the counsel-induced-delay are set forth in the Ninth Circuit's earlier opinion in this case on a limitations issue, Luna v. Kernan, 784 F.3d 640 (9th Cir. 2015); they will not be discussed further here. But the court again makes clear that present counsel for petitioner had no part in that delay.

The First Amended Petition (FAP), filed by previous counsel in this case, raises four issues herein: (1) involuntary confession under the totality of circumstances; (2) improper photo show-up which impermissibly tainted the eyewitness identification; (3) use of perjured testimony, and (4) [listed as "5" in the FAP] cumulative error. All agree the involuntary confession claim is properly before the court; however respondent contests the exhaustion status of Claims 2 and 3 in that the precise issue presented to the California courts differs from the issue presented in the FAP. Petitioner's present counsel briefs only Claim 1 in the Traverse.

The involuntary confession issue was litigated with an evidentiary hearing in the state courts prior to trial. In an apparently close case, the trial judge found no actionable misconduct on the part of the police in obtaining the confession, no promise of significance with respect to a family visit, and no substantially serious defects in petitioner's state of mind caused by drug intoxication and related sequellae, which could invalidate the confession. The Court of Appeal, in a lengthy opinion, agreed.

Petitioner's showing on the involuntary confession issue is colorable, but ultimately insufficient under AEDPA to overturn his conviction. The remaining claims lack merit as well. The petition should be denied.

Background Facts

Given the focus of AEDPA on the underlying state decisions, it is important, albeit lengthy, to set forth the findings of fact by the state appellate court, which are findings of fact for AEDPA purposes. Sumner v. Mata, 455 U.S. 591 (1982). The undersigned commences the discussion with the background.

On the evening of April 30, 2000, Christina Connery and Brandon and Aryan Carrafa held a party at their apartment to celebrate a friend's birthday. Several guests were present, including the murder victim, Adam Todd.

Brandon and a friend went to a nearby store to get some drinks and snacks. On their way back, they passed defendant and two other men who were all wearing knit caps (or possibly rolled-up skimasks). Because the apartment had been robbed by three men just a few weeks earlier, Brandon became concerned. Thus, after Brandon and his friend returned to the apartment, they told the others that there might be another robbery.

Aryan retrieved a gun and went with many of the others to the back bedroom. And sure enough, the robbers entered the apartment after kicking in the front door. One robber, who was wearing a ski mask, pushed open the bedroom door, and Aryan shot him. The robber moaned and fell back, and the door shut. Another shot was thereafter heard. Adam Todd's body was later found on the floor in the living room. He had been shot from no more than one foot away, and the bullet had entered his back in a downward angle. It was determined that the bullet could not have been fired from Aryan's gun.

Later that same night, defendant's wife asked a nursing student who lived down the street to come to their home. When she arrived, she saw that defendant had a wound above his right clavicle. She told defendant that she thought it was a bullet wound, but he told her to just fix it. She cleaned and dressed the wound and told him to see a doctor.

At trial, Brandon identified defendant, based on his appearance, as the robber who had been shot. Christina Connery identified defendant as one of the three robbers who came into the apartment, and another guest identified defendant as one of the three men that he and Brandon had passed before the robbery.

Defendant eventually confessed to police. He admitted that he had kicked in the apartment door and that a man in the back bedroom had shot him. He claimed, however, that after being shot, he accidentally discharged the shot that killed the victim. At defendant's request, his wife recovered the gun that he claimed he had used and gave it to police. It was determined that the bullet that killed the victim could have been fired from that gun.

People v. Luna, 2003 WL 21702376 (Cal. App. 2003).

AEDPA Standards

The AEDPA standards play an important role in this case, especially those related to state court findings of fact.

The statutory limitations of federal courts' power to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The text of § 2254(d) states:

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 meritsin 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.

For purposes of applying § 2254(d)(1), clearly established federal law consists of holdings of the United States Supreme Court at the time of the last reasoned state court decision. Thompson v. Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, ___ U.S. ___, ___, 132 S.Ct. 38, 44 (2011); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495 (2000)). Circuit precedent may not be "used to refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has not announced." Marshall v. Rodgers, ___ U.S. ___, ___, 133 S.Ct. 1446, 1450 (2013) (citing Parker v. Matthews, ___ U.S. ___, ___, 132 S.Ct. 2148, 2155 (2012)). Nor may it be used to "determine whether a particular rule of law is so widely accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court, be accepted as correct. Id.

A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640, 123 S.Ct. 1848 (2003). Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). In this regard, a federal habeas court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933 (2007); Lockyer, 538 U.S. at 75 (it is "notenough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.' "). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101, 131 S.Ct. 770 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140 (2004)). Accordingly, "[a]s a condition for obtaining habeas corpus from a federal court, 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, 562 U.S. at 103.

Facts adduced in the state courts are given the same type of deference:

When it comes to state-court factual findings, AEDPA has two separate provisions. First, section 2254(d)(2) authorizes federal courts to grant habeas relief in cases where the state-court decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Or, to put it conversely, a federal court may not second-guess a state court's fact-finding process unless, after review of the state-court record, it determines that the state court was not merely wrong, but actually unreasonable. Cf. Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) ("The 'unreasonable application' clause requires the

...