Ramirez v. Pfeiffer

• Decision Date: 12 August 2019
• Docket Number: No. 2:17-cv-00619 TLN KJN,2:17-cv-00619 TLN KJN
• Court: U.S. District Court — Eastern District of California
• Parties: RICHARD RAMIREZ, Petitioner, v. CHRISTIAN PFEIFFER, Warden, Respondent.

RICHARD RAMIREZ, Petitioner, v. CHRISTIAN PFEIFFER, Warden, Respondent.

No. 2:17-cv-00619 TLN KJN

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

August 12, 2019

FINDINGS & RECOMMENDATIONS

I. Introduction

Petitioner is a state prisoner, proceeding without counsel, with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2011 convictions for second degree murder with use of a firearm and being a felon in possession of a firearm. Petitioner was sentenced to forty years-to-life in state prison. Petitioner claims that (1) his second degree murder conviction is not supported by sufficient evidence, (2) the prosecutor engaged in prejudicial misconduct concerning the definition of voluntary manslaughter, (3) the prosecutor's closing argument was improper and trial counsel was ineffective for failing to object, (4) the trial court erred in refusing to instruct on defense of others, (5) the trial court erred by instructing the jury with CALCRIM 3472, (6) the cumulative effect of the errors petitioner alleges in grounds two through five resulted in an unfair trial, and (7) the imposition of the personal use of a firearm enhancement at sentencing violates the Eighth Amendment prohibition against cruel and unusual punishment. After careful review of the record, this court concludes that the petition should be denied.

II. Procedural History

On July 19, 2011, a jury found petitioner guilty of second degree murder (Cal. Pen. Code, §§ 187/189) and found true a firearm use enhancement (Cal. Pen. Code, 12022.53(d)); it also found petitioner guilty of being a felon in possession of a firearm (Cal. Pen. Code, § 12021(a)(1)). (LD 2 322-24, 389-90; LD 6 at 833-37.)¹ On November 4, 2011, petitioner was sentenced to forty years-to-life in state prison. (LD 2 at 433-34; LD 3 at 22-23; LD 6 at 841-55.)

Petitioner appealed the conviction to the California Court of Appeal, Third Appellate District. The Court of Appeal affirmed the conviction on October 25, 2016. (LD 12.)

Petitioner filed a petition for review in the California Supreme Court, which was denied on January 25, 2017. (LD 13 & 14.)

Petitioner filed the instant petition on March 23, 2017. (ECF No. 1.)

III. Facts²

In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:

Prosecution Evidence

On the afternoon of May 24, 2009, Monica Cassas hosted a birthday party for her nephew Jeremiah Uribe. At least 30 guests—including defendant—attended the party at Cassas's house on 18th Avenue in Sacramento. Defendant was known to the group as "Boxer" or "Box."

While the party was going on, Christopher Montejano arrived. Montejano, known as "Criminal," was angry and looking to fightdefendant. Montejano called for defendant to come outside, but a few men at the party told Montejano there were children present and it was "not the time or the place" for a fight. Montejano got into a car and left.

Montejano returned and repeated his call for defendant to come outside to fight. Again, some men at the party told Montejano to resolve it at a later time, "old school style" with a fistfight. At some point, in the backyard, Daniel Uribe handed defendant a gun. Montejano left again.

Montejano returned a [third] time. This time he was wearing a child-size backpack. Montejano appeared to be "really aggravated" and was screaming. One of the party attendees, Marissa Almanza, was outside and observed Montejano pacing back and forth in front of the house, saying, "I will just ... shoot you bitches and kids. I don't care." Montejano, however, did not display a gun, and eventually Almanza went inside the house. Defendant came outside and told Montejano, "You want to talk, let's talk."

Defendant and Montejano walked together to a driveway approximately four houses from the birthday party. Several witnesses saw defendant and Montejano argue loudly. Michelle Griffin heard Montejano exclaim, "[G]o ahead shoot me, if you're gonna shoot me, shoot me." The men argued for 10 minutes, during which Montejano began to "try to unzip his backpack." However, he "never got a chance to" do so because defendant pulled a gun out of his pants pocket and shot Montejano. Almanza looked over when she heard shots. She saw Montejano lying on his side in a fetal position, and then heard four more shots.

Defendant took the backpack off of Montejano and ran away. Eddie Sabala was able to see inside the backpack, which was unzipped. Inside, he saw a semi-automatic handgun.

A white Cadillac pulled up in front of where Montejano lay, and its occupants dragged his limp body into the car and drove Montejano to the University of California, Davis Medical Center's emergency room. Montejano received several operations in an attempt to repair the damage caused by six gunshot wounds. Five days after the shooting, Montejano died due to gunshot wounds and the secondary effects of shock and pneumonia.

Three weeks after the shooting, defendant was arrested in Russellville, Arkansas. Arkansas State Police Officer Chris Goodman was on patrol when he observed a black sport-utility vehicle "jerked from the right lane to the left" in a way that "cut off" the car in front of the patrol vehicle. Officer Goodman initiated a traffic stop, looked at the three occupants of the vehicle, and recognized defendant from a photograph in a bulletin issued by the United States Marshall's office. When the officer told defendant he was wanted for murder, defendant answered that his name was Jose Manuel. After he was handcuffed and placed in Officer Goodman's vehicle, defendant said: "You got me. I'm Richard Ramirez."

Defense Evidence

The defense presented evidence that Angella Sandoval, Montejano's former girlfriend and mother of his child, got into a fight with Monica Cassas about a week before the shooting. The two women ended up hitting and pulling each other's hair. Defendant intervened by pulling Sandoval away by her hair. Sandoval retorted that she was going to tell Montejano about the incident. Defendant responded, "[F]uck you. Get out of my face." Although Sandoval did not inform Montejano, he nonetheless learned about the incident "[b]y word of mouth."

During the party, defendant told Almanza he would later box with Montejano at a park and that would "handle" the situation.

During a June 14, 2011, interview with Detective Derrick Greenwood, Sabala stated Montejano "was trying to, like reach and grab his gun, it was zipped up [inside the backpack], and, um, [defendant] pulled out his gun and shot him." However, Sabala also stated he saw the gun in the backpack only after defendant took it from Montejano as he lay on the ground.

(People v. Ramirez, slip op. at 2-3.)

IV. Standards for a Writ of Habeas Corpus

An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:

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.

28 U.S.C. § 2254(d).

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, 132 S. Ct. 38, 44-45 (2011)); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)). Circuit court precedent "may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)). However, 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, 569 U.S. 58, 64 (2013) (citing Parker v. Matthews, 132 S. Ct. 2148, 2155 (2012) (per curiam)). 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. Further, where courts of appeals have diverged in their treatment of an issue, it cannot be said that there is "clearly established Federal law" governing that issue. Carey v. Musladin, 549 U.S. 70, 77 (2006).

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 (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.³ Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams v. Taylor, 529 U.S. at...