On
September 9, 1997, the Monterey County District Attorney
filed an information charging petitioner with murder (Cal.
Penal Code § 187) and use of a firearm in commission of
felony (Cal. Penal Code § 12022.5(a)). Answer, Ex. A,
Volume 1 of Clerk's Transcript (“1 CT”)
1-2.[2]
More
than sixteen years later, on March 27, 2013, petitioner was
arraigned following an arrest on the warrant for the
aforementioned charges. 1 CT 3.
On
November 12, 2014, the jury found petitioner guilty of first
degree murder with an enhancement for use of a firearm. 1 CT
201-202. On June 4, 2015, the trial court sentenced
petitioner to thirty-five years to life in prison with the
possibility of parole. 1 CT 261.
Petitioner
appealed and, on June 13, 2018, the California Court of
Appeal affirmed his conviction. People v. Soto, No.
H042397, 2018 WL 2949484 (Cal.Ct.App. June 13, 2018). The
California Supreme Court denied review on September 26, 2018.
Answer, Ex. H. On February 25, 2019, the United States
Supreme Court denied his petition for a writ of certiorari.
ECF No. 1 at 274[3] (Pet., Ex. F). Petitioner did not seek
habeas review in the state courts. On February 12, 2020,
petitioner filed the instant federal petition for a writ of
habeas corpus. ECF No. 1.
The
following background facts are taken from the June 13, 2018
opinion of the California Court of Appeal:[4]
Hilario Avila was fatally shot on August 30, 1997, in the
Greenfield apartment where he lived with three other people.
One of his cotenants, Emidio Cruz, testified that he saw the
shooting. He said that he and the victim had been living in
the apartment's living room, while defendant-whom he knew
as Julio-shared the apartment's single bedroom with
Consuelo Garcia Rodriguez, also known as Chelo, whom
defendant later told police was a sometime prostitute. Cruz
identified defendant (as “Julio”), both in court
and in a 17-year-old photograph.
According to Cruz, the three men had been drinking beer since
around 3:00 p.m., when they had arrived home from their
day's work for an agricultural labor contractor. They
were joined by Francisco Lopez, also known as Don or
Dominguez Pancho or Panchito, a friend of Cruz's.
Immediately before the shooting, Cruz was standing in a
corner of the living room talking to Panchito. Hilario Avila,
the victim, was sitting in a chair when defendant emerged
from the bedroom carrying a lever-action rifle. Saying,
“Ahora si, Hilario” (“That's it,
Hilario”), defendant fired three rounds into Avila. He
then dropped the rifle and left the apartment.
Pedro Dominguez, a foreman for the farm labor contractor that
employed the men, testified that defendant had worked under
the name of Julio Moreno and was also known by the nickname
“Guero” or “the Guero.” Dominguez
testified that one night in August 1997 he was outside the
front of his home, having just returned home with his family
from dinner, when he heard his wife scream from the rear of
the house. Upon going to investigate he encountered
defendant, who seemed “a little disoriented, but also
at the same time, a little upset and, I felt, a little bit
out of control.” Dominguez “told him to calm
down” and asked if something had happened, and what was
going on. Defendant asked for a ride.
Dominguez consented in order to get defendant away from the
family. As he drove away from the house defendant, who was
carrying nothing but the clothes he was wearing, said he
wanted to go to Fresno or to Santa Maria in Southern
California. Refusing to drive to those distant places,
Dominguez dropped defendant at a corner store in Greenfield.
His only other interaction with defendant in the ensuing 17
years was a phone call from defendant seeking his final
paycheck.
On the night of the killing, police arrived at the scene
followed by investigators from the district attorney's
office. Avila was still sitting in the chair, dead. He proved
to have a blood alcohol content of 0.17 percent. Any of his
three gunshot wounds could have been lethal; one bullet had
pierced his heart and severed his spine. Lying just inside
the front door was a .44-caliber lever-action rifle with the
action open. Also on the floor were three spent cartridges
and one unspent cartridge. Another unspent cartridge was
still in the rifle. Forty-one empty beer cans were found in
the apartment.
No fingerprints were found on the rifle. In a bedroom closet,
officers found both men's and women's clothing. They
also found pill bottles bearing the name of Fidel Rios, as
well as various other items in the name of either Julio
Moreno or Fidel Rios Soto, including a checkbook holder and a
pay stub. Also in evidence was a tenant application dated May
21, 1997, for the apartment where the shooting took place. It
identified the tenant-applicant as Fidel Rios Soto and bore
his apparent signature as well as that of Consuelo Garcia.
The application listed Emidio Cruz as a “relative[
].”
Outside the apartment, Officer Miguel Cabrera took a
statement from Cruz, whom he described as excited,
“almost in shock, ” and
“traumatized.” Cruz told Cabrera that
“Julio” was the killer. Authorities linked this
identification to defendant, whom they had previously
encountered in connection with an attempted murder-suicide
that occurred on April 12, 1997, some four months prior to
the Avila killing. Defendant was not a suspect in that
matter, but had been photographed and fingerprinted as a
witness. Based on their inquiries into the Avila killing,
authorities issued a nationwide “be on the
lookout” alert for defendant.
Pedro Dominguez's brother, Nazario Dominguez, testified
that he was the owner of the labor contracting business for
which Pedro was the foreman. He recognized a photo of the
worker known as Julio Moreno or Guero. He identified a
paycheck, with attached stub, dated September 5, 1997, and
made out to Julio Moreno. It covered a pay period from August
24, 1997 to August 30, 1997. The stub, which was admitted
without objection or limitation, appears to show that
defendant worked six hours on August 30, 1997, the date of
the killing. It was never picked up by, or delivered to,
defendant.
The prosecutor filed a complaint on September 10, 1997,
charging defendant with murder (Pen. Code, § 187) and
alleging a sentence enhancement for personal use of a firearm
(Pen. Code, § 12022.5, subd. (a)). After police failed
to locate defendant, the case “went into the dead
file” until March 2013, when defendant was detained by
the California Highway Patrol near Willits in Glenn County.
His fingerprints matched those of the Monterey County
suspect. A deputy sheriff and an investigator from the
district attorney's office drove to Glenn County to
retrieve him.
On March 26, 2013, defendant was questioned by investigators
from the district attorney's office under circumstances
described more fully [below]. His statements were offered at
trial as misleading or evasive, and thus indicative of
consciousness of guilt. He admitted to the investigators that
he had used the name “Julio” and had possessed a
lever-action rifle, though he said he had it only briefly. At
their request he made a drawing, which was placed in
evidence, resembling the murder weapon.
After defendant's apprehension, authorities tried
unsuccessfully to locate Consuelo Garcia Rodriguez
(“Chelo”) and Francisco Lopez (“Don
Panchito”), both of whom had been questioned in 1997.
Neither could be found.
People v. Soto, 2018 WL 2949484, at *1-2 (brackets
in original and brackets in “[below]” added).
A
petition for a writ of habeas corpus is governed by the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPAˮ). This Court may entertain a petition for
a writ of habeas corpus “in behalf of a person in
custody pursuant to the judgment of a State court only on the
ground that he is in custody in violation of the Constitution
or laws or treaties of the United States.ˮ 28 U.S.C.
§ 2254(a).
A
district court may not grant a petition challenging a state
conviction or sentence on the basis of a claim that was
reviewed on the merits in state court unless the state
court's 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.ˮ 28 U.S.C. §
2254(d); Williams v. Taylor, 529 U.S. 362, 412-13
(2000). Additionally, habeas relief is warranted only if the
constitutional error at issue “‘had substantial
and injurious effect or influence in determining the
jury's verdict.'” Penry v. Johnson,
532 U.S. 782, 795 (2001) (quoting Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993)).
A state
court decision is “contrary to” clearly
established Supreme Court precedent if it “applies a
rule that contradicts the governing...
