Yim v. Lizarraga, Case No. 16-cv-03610-WHO (PR)

Decision Date26 June 2018
Docket NumberCase No. 16-cv-03610-WHO (PR)
PartiesROBERT D. YIM, Petitioner, v. JOE A. LIZARRAGA, Respondent.
CourtU.S. District Court — Northern District of California
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
INTRODUCTION

Petitioner Robert Yim seeks federal habeas relief from his state convictions for murder and attempted murder on the grounds that (i) the trial court violated his right to self-representation; (ii) his sentence constitutes cruel and unusual punishment; and (iii) defense counsel rendered ineffective assistance.1 Because Claims (i) and (ii) lack merit, they are DENIED. The ineffective assistance claims are DISMISSED as untimely. But even if I were to review the merits of the dismissed claims, they would be denied.

BACKGROUND

In 2010, Yim shot Samuel Nava in the head, killing him. (Ans., Dkt. No. 23-8 State Appellate Opinion) at 79.)2 The facts were crisply summarized by the state appellatecourt:

During the afternoon of May 3, 2010, Daveon Taylor was driving in Hayward with three friends, including Samuel Nava III. On the way toward Nava's home, they saw Yim, a stranger to them, sitting on a park bench with a young woman (Veronica Rodriguez). Yim stared at them with a mean expression on his face.
Taylor stopped the car and asked Yim, 'Is there a problem?' Yim walked toward the car in an aggressive manner and said, 'Yes, there is,' and repeatedly asked, 'What up, nigga?' At some point — either before or after Yim approached Taylor's car — Yim went to Rodriguez's car and retrieved his gun.
Afraid, Taylor quickly drove away. Concerned that Yim could follow them to Nava's house, Taylor headed instead for Union City, stopping at a red light in the left-turn lane at the intersection of Mission Boulevard and Industrial Parkway. Meanwhile, Yim and Rodriguez left the park in Rodriguez's car and also headed toward Union City, where Yim lived.
At the stoplight at Industrial and Mission, Yim and Rodriguez were in the left-turn lane two cars behind Taylor's vehicle. Yim got out of the car. Unaware Yim was there, Taylor made a U-turn and saw Yim on the center median. As he continued to drive in Yim's direction, Yim stepped into the street, pulled out his gun, and fired several shots at Taylor's car, shattering the front and rear windshields; one bullet struck Nava in the back of the head and killed him.

(Ans., Dkt. No. 23-8 at 79.3)

An Alameda County Superior Court jury found Yim guilty of the second degree murder of Nava, and of the attempted murder of the three others. It also found true a sentencing enhancement allegation. (Id. at 79-80.) Yim was sentenced to 127 years to life in state prison. (Id. at 80.) On appeal, his sentence was reduced to 87 years to life, but his appeal was otherwise denied. His other attempts to overturn his conviction were unsuccessful. This federal habeas petition followed.

STANDARD OF REVIEW

Under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"),this Court may entertain a petition for 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." 28 U.S.C. § 2254(a). The petition may not be granted with respect to any claim that was adjudicated 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." 28 U.S.C. § 2254(d).

"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 (Terry) v. Taylor, 529 U.S. 362, 412-13 (2000).

"Under the 'unreasonable 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." Id. at 413. "[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." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409.

DISCUSSION
i. Denial of Motion for Self-Representation

On the day of sentencing, Yim asked for the substitution of counsel on grounds that he wanted to file a motion for a new trial, which his current counsel declined to do. (Ans., Dkt. No. 23-8 at 84.) The court found the motion untimely and that Yim had receivedadequate representation. (Id.) Yim asked to represent himself and to file his new trial motion. (Id.) The court acknowledged his self-representation request and directed the clerk to file the new trial motion. (Id. at 84-85.) It appears from the transcript that the trial court sentenced him without ruling on the motions. (Id. at 84.) The clerk's docket and minutes indicate that the motions were denied. (Id. at 85.) Yim alleges the trial court violated his right to self-representation.

This claim was rejected on appeal. Yim first claimed that the self-representation motion was implicitly granted but that he was not allowed to exercise his right. This was unpersuasive. Even if his interpretation of the record was correct, he failed to show prejudicial error:

The record indicates no possibility that Yim would have received a more favorable outcome if he had been allowed to argue his new trial motion. The new trial motion was based on the alleged ineffectiveness of his trial attorney, which the court had already rejected after hearing from Yim during the Marsden [motion to substitute counsel] proceedings; Yim does not challenge this ruling or explain why the new trial motion might have been granted if Yim had argued it. Nor does the record indicate any possibility he would have received a more favorable outcome if he had represented himself at sentencing. Yim was given the opportunity to speak at the sentencing hearing, but he merely stated that he shot at Taylor's car to defend himself. In short, there is no probability that self-representation would have resulted in a new trial, a more lenient sentence, or any other outcome more favorable than what he obtained, so the error Yim alleges was harmless.

(Ans., Dkt. No. 23-8 at 87-88.)

Yim also claimed, in the alternative, that the motion was implicitly denied. This claim was rejected. A motion for self-representation at sentencing must be raised at a reasonable time before sentencing. Because Yim's motion was made on the day of sentencing, it was untimely. At that point, self-representation "is no longer a matter of right, but is subject to the court's discretion." (Id. at 88.) The trial court's implicit denial was thought harmless, for the reasons stated above. (Id. at 89.)

A criminal defendant has a Sixth Amendment right to self-representation. Farettav. California, 422 U.S. 806, 832 (1975). A defendant's request to represent himself must, however, be made in timely fashion; "a timeliness element in a Faretta request is clearly established federal law as determined by the Supreme Court." Marshall v. Taylor, 395 F.3d 1058, 1061 (9th Cir. 2005) (internal quotation marks and citation omitted). "[B]ecause the Supreme Court has not clearly established when a Faretta request is untimely," however, "other courts are free to do so as long as their standards comport with the Supreme Court's holding that a request 'weeks before trial' is timely." Id.

In Marshall, the defendant had made his Faretta request on the morning of trial. Marshall, 395 F.3d at 1061. The Ninth Circuit found no constitutional error in the state court's denial of the request. Id. ("Because the timing of [petitioner's] request fell well inside the 'weeks before trial' standard for timeliness established by Faretta, the [California] court of appeal's finding of untimeliness clearly comports with Supreme Court precedent."). In so holding, the Ninth Circuit further observed that the petitioner had "presented no facts to show that his last-minute request was reasonable," and that "he could have made his request much earlier than the day of trial." Id. at 1061.

Habeas relief is not warranted here. Yim's request was made on the day of sentencing, not, as required by Faretta, "weeks before trial." The state court reasonably denied his claim. See Jackson v. Ylst, 921 F.2d 882, 888 (9th Cir. 1990) (no habeas relief for the denial of a Faretta request made on the day of sentencing); Ramirez v. Yates, 71 F. Supp. 3d 1100, 1118 (N.D. Cal. Oct. 21, 2014) (same). Because the state court's denial was reasonable, it is entitled to AEDPA deference. This claim is DENIED.

To the extent that Yim contends his constitutional rights were violated when the trial court implicitly denied or failed to hear his new trial motion, such claim is DENIED. There is no clearly established constitutional right to move for a new trial, or to have such a motion granted. "The Constitution itself, of course, makes no mention of new trials." Herrera v. Collins, 506 U.S. 390, 407 (1993) (declining to find that Texas's refusal to entertain a new trial motion that was untimely under state rules "transgresses a principle of fundamental fairness 'rooted in the traditions and conscience of our people.'") Rather, theright to file a new trial motion is a state statutory...

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