Orona v. Hedgepeth, 1:12-CV-00581 LJO GSA HC

• Decision Date: 24 August 2012
• Docket Number: 1:12-CV-00581 LJO GSA HC
• Court: U.S. District Court — Eastern District of California
• Parties: ANTHONY ORONA, Petitioner, v. HEDGEPETH, Warden, Respondent.

ANTHONY ORONA, Petitioner,

v.HEDGEPETH, Warden, Respondent.

1:12-CV-00581 LJO GSA HC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Date: August 24, 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 and Rehabilitation pursuant to a judgment of the Superior Court of California, County of Fresno, following his conviction by jury trial on May 19, 2009, of first degree murder (Cal. Penal Code § 187) and active participation in a criminal street gang (Cal. Penal Code § 186.22(a)). (CT¹ 447, 449.) The jury further found true the allegations that Petitioner had committed the murder in the attempted commission of a carjacking (Cal. Penal Code § 190.2(a)(17)(L)), and that Petitioner had committed the murder for the benefit of, or in association with, a criminal street gang (Cal. Penal Code § 186.22(b)). On June 17, 2009, Petitioner was sentenced to serve an indeterminateterm of life without the possibility of parole, plus a consecutive term of ten years, in state prison. (CT 447, 449.)

Petitioner timely filed a notice of appeal. On January 12, 2011, the California Court of Appeal, Fifth Appellate District ("Fifth DCA"), affirmed Petitioner's judgment in a reasoned decision. (See Lodged Doc. No. 1.) Petitioner then filed a petition for review in the California Supreme Court. On April 13, 2011, the petition was summarily denied. (See Lodged Doc. No. 2.)

On April 4, 2012, Petitioner filed the instant federal habeas petition in this Court. The petition presents the following grounds for relief: 1) The accomplice instructions violated Petitioner's constitutional rights by lowering the burden of proof; 2) CALCRIM Nos. 334 and 335 failed to adequately instruct the jury on corroboration; 3) The trial court erred by failing to instruct on accomplice corroboration as to witness Alex Huerta; 4) CALCRIM No. 334 does not adequately set forth the defendant's burden in proving a witness was an accomplice; 5) The trial court erred in failing to sever the criminal street gang count and in failing to bifurcate the criminal street gang enhancement; 6) The trial court denied Petitioner's right to an impartial jury by failing to dismiss the entire jury venire; 7) The evidence was insufficient to support the criminal street gang enhancement; 8) The trial court erred by failing to instruct the jury that CALCRIM No. 370 did not apply to the gang enhancement; and 9) CALCRIM No. 226 impermissibly lightened the prosecution's burden of proof. On June 29, 2012, Respondent filed an answer to the petition. Petitioner did not file a traverse.

STATEMENT OF FACTS²

Holding a shotgun in his hand, Anthony Orona told Candice Clark that he and Oscar Ballesteros wanted her boyfriend Carlos Gonzalez's truck. He threatened to kill her and her friend Elizabeth Hendricks if she did not tell Gonzalez to pick her up in his truck, but he promised not to hurt anyone if she cooperated. Clark called Gonzalez and asked him to pick her up in the alley down by the tracks, where Orona and Ballesteros went after putting on gloves and bandannas. As Gonzalez drove up in his truck, Clark waved him away, Orona and Ballesteros ran toward him, and he started to drive away. A shot was fired. He died of a gunshot wound to the head.

A jury found Orona guilty of first degree murder during the attempted commission of a carjacking for the benefit of a criminal street gang (count 1; Pen.Code, §§ 186.22, subd. (b)(1), 187, subd. (a), 190.2, subd. (a)(17)(L)) and guilty of active participation in a criminal street gang (count 2; § 186.22, subd. (a)). The court, inter alia, sentenced him to a term of life without the possibility of parole on the special circumstance murder and a 10-year term on the gang-benefit enhancement (count 1) and imposed and stayed a three-year term on the gang-participation charge (count 2). We reverse the judgment as to the count 2 gang-participation charge for insufficiency of the evidence, strike the count 1 gang-benefit enhancement from the judgment for lack of statutory authorization, modify the judgment to correct sentencing errors involving a probation revocation fine and custody credits, and otherwise affirm the judgment.

(See Lodged Doc. No. 1.)

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 laws or 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 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged conviction arises out of Fresno County Superior Court, which is located within the jurisdiction of this Court. 28 U.S.C. § 2254(a); 28 U.S.C. § 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. Lindh v. Murphy, 521 U.S. 320 (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 unreasonableapplication 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 principles set 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, 555 F.3d at 760.

If the Court determines there is governing clearly established Federal law, the Court must then consider whether the state court's decision was "contrary to, or involved an unreasonable application of," [the] clearly established Federal law." Lockyer, 538 U.S. at 72, quoting 28 U.S.C. § 2254(d)(1). "Under the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-13; see also Lockyer, 538 U.S. at 72. "The word 'contrary' is commonly understood to mean 'diametrically different,' 'opposite incharacter or nature,' or 'mutually opposed.'" Williams, 529 U.S. at 405, quoting Webster's Third New International Dictionary 495 (1976). "A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases." Id. If the state court decision is "contrary to" clearly established Supreme Court precedent, the state decision is reviewed under the pre-AEDPA de novo standard. Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir.2008) (en banc).

"Under the 'reasonable application clause,' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 413. "[A] federal court may not issue the writ simply because the 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." Id. at 411; see also Lockyer, 538 U.S. at 75-76. The writ may issue only "where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme Court's] precedents." Harrington, 131 S.Ct. at 784. In other words, so long as fairminded jurists could disagree on the correctness of the state courts...