Opinion
CV 23-9946-CAS(E)
06-28-2024
DANIEL GARY ESQUIVEL, Petitioner, v. ROB ST. ANDRE, WARDEN, Respondent.
ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS
CHRISTINA A. SNYDER UNITED STATES DISTRICT JUDGE
Pursuant to 28 U.S.C. section 636, the Court has reviewed the Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report and Recommendation to which any objections have been made. The Court accepts and adopts the Magistrate Judge's Report and Recommendation.
IT IS ORDERED that Judgment shall be entered denying and dismissing the Petition with prejudice.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Magistrate Judge's Report and Recommendation and the Judgment herein on Petitioner and on counsel for Respondent.
LET JUDGMENT BE ENTERED ACCORDINGLY.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Christina A. Snyder, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
On November 20, 2023, Petitioner filed a “Petition for Writ of Habeas Corpus By a Person in State Custody.” On January 25, 2024, Respondent filed an Answer. On April 29, 2024, Petitioner filed a “Reply to Respondent's Answer, etc.”
BACKGROUND
A Los Angeles Superior Court jury found Petitioner guilty of the attempted murder of Carlos Juarez and the attempted murder of Jose Macias (Doc. 22-2, pp. 140-43). The jury also found to be true certain firearm enhancement allegations (id.). Petitioner received a sentence of life plus 25 years to life (id., p. 200).
Herein, the Court sometimes cites to pertinent documents using the numbers on the CM/ECF docket.
On direct appeal, Petitioner's conviction for the attempted murder of Juarez was reversed and Petitioner's conviction for the attempted murder of Macias was affirmed (Doc. 22-23). The California Court of Appeal remanded for resentencing on the Macias conviction, directing the Superior Court, inter alia, to exercise discretion whether to dismiss the firearm enhancement (id.). On remand, the Superior Court elected not to dismiss the enhancement, and imposed a sentence of life plus 20 years (Doc. 22-26, pp. 91-124). The California Court of Appeal then affirmed this judgment, and the California Supreme Court summarily denied review (Doc. 22-31; Doc. 2233).
PETITIONER'S CONTENTIONS
Petitioner contends: (1) “the Court violated Petitioner's 14th Amendment to [sic] Due Process when It failed to Conduct an Inquiry into Juror Misconduct” (Claim One); and (2) “the Court Abused Its discretion and Violated Petitioner's 14th Amendment Right to Due Process When It Refused to Dismiss the Firearm Enhancement” (Claim Two (Petition, p. 5).
STANDARD OF REVIEW
Under the “Antiterrorism and Effective Death Penalty Act of 1996” (“AEDPA”), a federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody 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); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000).
“Clearly established Federal law” refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher, 565 U.S. 34, 38 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). A state court's decision is “contrary to” clearly established federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it “confronts a set of facts . . . materially indistinguishable” from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.
Under the “unreasonable application” prong of section 2254(d)(1), a federal court may grant habeas relief “based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced.” Lockyer v. Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision “involves an unreasonable application” of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts).
“In order for a federal court to find a state court's application of [Supreme Court] precedent ‘unreasonable,' the state court's decision must have been more than incorrect or erroneous.” Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citation omitted). “The state court's application must have been ‘objectively unreasonable.'” Id. at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005). “Under § 2254(d), a habeas court must determine what arguments or theories supported or . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.” Harrington v. Richter, 562 U.S. 86, 102 (2011). This is “the only question that matters under § 2254(d)(1).” Id. (internal quotations and citation omitted). Habeas relief may not issue unless “there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents.” Id. “As 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.” Id. at 103; see also Shinn v. Kayer, 592 U.S. 111, 112 (2020) (per curiam). “If this rule means anything, it is that a federal court must carefully consider all the reasons and evidence supporting the state court's decision.” Mays v. Hines, 592 U.S. 385, 391 (2021).
In applying these standards, the Court looks to the last reasoned state court decision. See Brown v. Davenport, 596 U.S. 118, 141 (2022) (under AEDPA, federal habeas court must “assess the reasonableness of the last state-court adjudication on the merits of the petitioner's claim”) (citation and quotations omitted); Wilson v. Sellers, 138 S.Ct. 1188, 1193-97 (2018) (endorsing presumption that unexplained decision of state higher court adopted the reasoning of the last reasoned state court decision). Where no reasoned decision exists, as where the state court summarily denies a claim, “[a] habeas court must determine what arguments or theories . . . could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.” Harrington v. Richter, 562 U.S. at 102; see also Cullen v. Pinholster, 563 U.S. 170, 188 (2011).
Where the state courts do not reach the merits of a federal claim, “the claim is reviewed de novo.” Cone v. Bell, 556 U.S. 449, 472 (2009); see also Lewis v. Mayle, 391 F.3d 989, 996 (9th Cir. 2004). Moreover, federal habeas courts may “deny writs of habeas corpus under § 2254 by engaging in de novo review when it is unclear whether AEDPA deference applies, because a habeas petitioner will not be entitled to a writ of habeas corpus if his or her claim is rejected on de novo review.” Berghuis v. Thompkins, 560 U.S. 370, 390 (2010) (citation omitted).
Additionally, federal habeas corpus relief may be granted “only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). In conducting habeas review, a court may determine the issue of whether the petition satisfies section 2254(a) prior to, or in lieu of, applying the standard of review set forth in section 2254(d). Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).
In the present case, the most recent reasoned decision rejecting Claim One is a December 23, 2019 decision of the California Court of Appeal (Doc. 22-23), and the most recent reasoned decision rejecting Claim Two is a July 12, 2022 decision of the California Court of Appeal (Doc. 22-31). Therefore, these decisions constitute the relevant adjudications for purposes of reviewing the claims under AEDPA standards. See Brown v. Davenport, 596 U.S. at 141-42; Wilson v. Sellers, 138 S.Ct. at 1193-97.
DISCUSSION
For the reasons discussed below, the Petition should be denied and dismissed with prejudice.
I. Petitioner is Not Entitled to Federal Habeas Relief on Claim One.
During deliberations, jurors expressed concerns regarding their safety (Doc. 22-2, p. 101, Doc. 22-11). The trial judge consulted with the prosecutor and counsel for Petitioner regarding those concerns (Doc. 22-11, pp. 4-8). The trial judge later issued a written response to the jurors, a response approved in advance by the prosecutor and by counsel for Petitioner (Doc. 22-2, p. 101; Doc. 2211, pp. 7-8). At that time, counsel for Petitioner expressly declined to have the trial judge make any further inquiry of the jury regarding the matter (Doc. 22-11, pp. 5-8). Nevertheless, in Claim One, Petitioner argues that the trial court violated due process by not conducting a further inquiry of the jury sua sponte. Claim One fails under the AEDPA standard of review.
A. Relevant Trial Court Proceedings
During deliberations, the jury submitted a note, stating: “Several jurors have concern for safety/retaliation after the trial. What is the procedure for the jurors leaving the courthouse after the verdict is read? One of the jurors is concerned she might have been followed after leaving yesterday.” (Doc. 22-2, p. 101). The trial judge read the jury's note to the prosecutor and counsel for Petitioner (Doc. 22-11, p. 4). Immediately thereafter, the following discussion occurred:
[The Court]:
And, well, a couple of things. The procedure for leaving the court - - leaving the courthouse, they will be escorted out of the courthouse by a sheriff deputy. That's not going to be an issue.
“One of the jurors is concerned she might have been followed.” Now that -- I don't know if it's going to create an issue with regard to whether or not she is able to continue to deliberate and who is responsible for following her.
There are a lot of questions that could be asked, or there could be no questions asked, frankly. They are not asking -- that person is not asking to be relieved from their service. They haven't indicated that they have -- that they are so fearful they can't make a decision.
I had this happen in a gang-related case once before where a juror felt that she was followed, and she was absolutely paralyzed by the situation and indicated that and was removed from the jury. So they are not saying that here.
So what's your -- I'm intending to tell them they'll be escorted out and I am reminding them that they must make their decision based on only the evidence that they receive in the courtroom
and nothing else, they reiterate that instruction.
[PETITIONER'S COUNSEL]:
I would ask the court to remind them and tell them the procedural information leaving the courtroom. And I don't have any other concession [sic].
THE COURT:
Okay. So you -- at this time you are not asking to -- this court to inquire any further?
[PETITIONER'S COUNSEL]:
No.
THE COURT:
Okay. And that's a double negative. It's my fault. Are you asking this court to do -- inquire any further?
[PETITIONER'S COUNSEL]:
No.
THE COURT:
Okay. Then once I've written my response to them, I will -- we'll call you back and I'll read exactly what I've written.
[PETITIONER'S COUNSEL]:
I'm actually in a preliminary hearing right now. I can call the court back as soon as possible.
THE COURT:
You mean you are on the record presently?
[PETITIONER'S COUNSEL]:
I stepped outside, but I'm in the middle of a prelim.
THE COURT:
They allowed you to walk outside to take this call?
[PETITIONER'S COUNSEL]:
Yes, yes.
THE COURT:
Okay. How much longer is that prelim going to go on?
[PETITIONER'S COUNSEL]:
It shouldn't be more than an hour.
THE COURT:
Okay. So what's the procedure you want to follow?
[PETITIONER'S COUNSEL]:
You can call me back. The judge is giving me permission to speak with you, to call.
THE COURT:
We'll call you back in the next five minutes.
[PETITIONER'S COUNSEL]:
All right.
THE COURT:
Thank you.
(PAUSE IN PROCEEDINGS)
THE COURT:
I have the actual text, what I'm going to say. Can you hear me?
[PETITIONER'S COUNSEL]:
Yes.
THE COURT:
[The prosecutor] is here. “The jurors will be escorted from the courtroom and the building when you are ready and, if requested, by a sheriff deputy.
“Please review all of CALCRIM 222 and in specific [sic] the language you must disregard anything you saw or heard when the court was not in session, even if it was done or said by one of the parties or witnesses.”
And then my last sentence here is “Please do
(Doc. 22-11, pp. 4-8).
not hesitate to raise this concern again. As you know, I'm here to answer your questions.” Any issues with any of that?
[PETITIONER'S COUNSEL]:
No, that sounds good.
THE COURT:
And [the prosecutor], that's fine with you?
[THE PROSECUTOR]:
That's fine.
THE COURT:
Okay. Thank you. You are both excused now. Thanks.
[PETITIONER'S COUNSEL]:
Thank you.
B. California Court of Appeal's Decision
In a decision filed December 23, 2019, the California Court of Appeal rejected Claim One, reasoning:
The note from the jury reported that several jurors were concerned about retaliation and their safety, asked about the procedure for leaving the courthouse after the verdict, and stated one juror thought she might have been followed. The court observed that the juror who believed she might have been followed was not asking the court to excuse her from service and did not indicate she could not serve as an impartial juror. In its response to the jury's question, the court stated a peace officer would escort the jurors from the building after the trial if requested,
referred the jury to CALCRIM No. 222, and reiterated the instruction to disregard anything the jurors perceived outside of the trial. If the jurors had any further concerns about their safety, the court invited them to raise the issue again. Apparently satisfied with the court's response, the jurors did not raise any further safety concerns.
The trial court acted within its discretion in deciding not to conduct any further inquiry. The court responded to the jury's inquiry about safety and reminded the jurors of their duty to disregard external influences. The court reasonably concluded that providing an escort after the end of trial satisfied the jury's concerns and that the jury, which had already submitted several written requests and was not reluctant to raise issues with the court, had no further concerns regarding its safety. The juror who said she may have been followed did not seek to be excused. Counsel for [Petitioner] (twice) declined the court's invitation to conduct a further inquiry. Given its direct and remedial response to the jury's concerns, the court did not abuse its discretion when it chose not to conduct a formal hearing or further proceedings.(Doc. 22-23, pp. 14-15).
C. Analysis
Claim One fails under the AEDPA standard of review. No United States Supreme Court decision has clearly established that a trial court must conduct an inquiry of a jury sua sponte in the circumstances confronted by the trial judge in the present case.
In Sims v. Rowland, 414 F.3d 1148, 1153 (9th Cir.), cert. denied, 546 U.S. 1066 (2005) (“Sims”), the Ninth Circuit recognized that “the [United States] Supreme Court has not yet decided whether due process requires a trial court to hold a hearing sua sponte whenever evidence of juror bias comes to light.” Consequently, the Sims Court held “that it was not an objectively unreasonable application of federal law for the California Court of Appeal to refrain from imposing a sua sponte duty to conduct a hearing as a matter of Fourteenth Amendment due process.” Id. at 1157; accord Vigil v. Carey, 240 Fed. App'x 199, 201 (9th Cir. 2007) (“[petitioner] did not request an evidentiary hearing, and the trial court did not err in failing to hold such a hearing sua sponte”; citing Sims); Woosley v. McEwen, 2014 WL 8389360, at *37 (C.D. Cal. Nov. 14, 2014), adopted, 2015 WL 1460130 (C.D. Cal. Mar. 30, 2015), aff'd, 699 Fed. App'x 709 (9th Cir. 2017) (denying habeas relief under AEDPA review where the petitioner had failed to request the trial court to conduct “a hearing with the juror” in response to notice of an extraneous contact involving the juror; citing Sims); Moody v. Scribner, 2010 WL 1222038, at *17 (C.D. Cal. Jan. 22, 2010), adopted, 2010 WL 1222042 (C.D. Cal. Mar. 23, 2010), aff'd, 554 Fed. App'x 588 (9th Cir.), cert. denied, 574 U.S. 940 (2014) (“Although it might have been preferable for the trial court to have questioned the entire jury when confronted with information of potential tampering, there is no United States Supreme Court precedent requiring the trial court to make such an inquiry sua sponte . . .); cf. Von Tobel v. Benedetti, 975 F.3d 849, 853-57 (9th Cir. 2020), cert. denied, 141 S.Ct. 2682 (2021) (denying habeas relief in the absence of proof that jury misconduct affected the verdict where the state court had placed the burden on the petitioner to prove that “there was a reasonable probabilty or likelihood that the jury misconduct affected the verdict”).
Sims and its progeny require the denial of Claim One. The California Court of Appeal's rejection of this claim was not objectively unreasonable under “clearly established Federal law, as determined by the Supreme Court of the United States.” See 28 U.S.C. § 2254(d).
II. Petitioner is Not Entitled to Federal Habeas Relief on Claim Two.
In Claim Two, Petitioner argues that the Superior Court's resentencing on the firearm enhancement violated federal due process. Specifically, Petitioner argues that the Superior Court abused its discretion by failing to dismiss the enhancement in light of “special directive” policy pronouncements by the Los Angeles County District Attorney and post-conviction rehabilitative accomplishments by Petitioner. Claim Two does not present an issue cognizable on federal habeas corpus and, in any event, fails under the AEDPA standard of review.
A. Relevant Trial Court Proceedings
On February 1, 2021, the Superior Court continued the resentencing hearing to March 10, 2021, while indicating that the Los Angeles County District Attorney's policy directives did not incline the Superior Court to dismiss the firearm enhancement. (Doc. 22-26, p. 32; Doc. 22-27, pp. 22-27). On March 10, 2021, the Superior Court imposed a 20-year firearm enhancement as part of the resentencing, despite the policy directives and despite Petitioner's alleged postconviction rehabilitative accomplishments (Doc. 22-27, pp. 27-47).
B. California Court of Appeal's Decision
The California Court of Appeal rejected Claim Two in a decision filed July 12, 2022 (Doc. 22-31, pp. 8-15). The Court of Appeal found no material error under California law or federal law in regard to the resentencing (id.). The Court of Appeal held that changes in the District Attorney's policy directives did not require dismissal of the firearm enhancement (id.). The Court of Appeal also held that the Superior Court did not abuse its resentencing discretion in regard to Petitioner's efforts toward rehabilitation (id.).
C. Analysis
As indicated in the “Standard of Review” section, supra, federal habeas corpus relief may be granted “only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Mere errors in the application of state law are not cognizable on federal habeas review. Id.; Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions”); accord Pulley v. Harris, 465 U.S. 37, 41 (1984); see also Mullaney v. Wilbur, 421 U.S. 684, 691 (1975) (“state courts are the ultimate expositors of state law”).
Matters relating to sentencing and the service of a sentence generally are governed by state law and do not raise a federal constitutional question. See Miller v. Vasquez, 868 F.2d 1116, 111819 (9th Cir. 1989), cert. denied, 499 U.S. 963 (1991); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986); Sturm v. California Adult Authority, 395 F.2d 446, 448 (9th Cir. 1967), cert. denied, 395 U.S. 947 (1969); see also Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (“it is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts”) (original emphasis). Petitioner's conclusory characterization of alleged resentencing errors as violations of federal due process cannot transform non-cognizable state law issues into cognizable federal ones. See Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996), cert. denied, 522 U.S. 881 (1997).
Under narrow circumstances, the misapplication of state sentencing law may violate due process. See Richmond v. Lewis, 506 U.S. 40, 50 (1992). “[T]he federal, constitutional question is whether [the error] is so arbitrary or capricious as to constitute an independent due process” violation. Id. (internal quotation and citation omitted); see also Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994) (“Absent a showing of fundamental unfairness, a state court's misapplication of its own sentencing laws does not justify federal habeas relief.”). These narrow circumstances do not here apply.
A state court's alleged failure to follow the policy directives of a district attorney's office does not transgress state law, much less federal law or “fundamental fairness.” See Patel v. Matheson, 2022 WL 822349, at *9 (C.D. Cal. Jan. 12, 2022), adopted, 2022 WL 522997 (C.D. Cal. Feb. 22, 2022), app. dism'd, 2022 WL 2204169 (9th Cir. Apr. 29, 2022); Williams v. Pratt, CV 21-6587-MWF(PLA), Doc. 3, p. 6 (C.D. Cal. Aug. 24, 2021); cf. Clark v. Shirley, 2021 WL 6752164, at *4 (C.D. Cal. Nov. 15, 2021), adopted, 2022 WL 279007 (C.D. Cal. Jan. 31, 2022) (claim seeking sentence reduction under District Attorney's “special directive” did not raise an issue cognizable on federal habeas corpus). Similarly, arguments that a state court abused its discretion by declining to strike a firearm enhancement fail to raise any issue cognizable on federal habeas corpus. See e.g., Roberts v. Gastelo, 2023 WL 6386968, at *1 (E.D. Cal. Sept. 29, 2023); Carter v. Samuels, 2023 WL 6787451, at *4 (C.D. Cal. Sept. 11, 2023); Burdick v. Madden, 2022 WL 20359423, at *10 n.48 (C.D. Cal. Dec. 13, 2022), adopted, 2023 WL 4564406 (C.D. Cal. July 17, 2023); Fellows v. Atchley, 2022 WL 18717595, at *9-10 (C.D. Cal. Dec. 12, 2022, adopted, 2023 WL 2025025 (C.D. Cal. Feb. 15, 2023); Street v. Neuschmid, 2022 WL 16894872, at *11 (C.D. Cal. Feb. 10, 2022), adopted as modified by, 2023 WL 2061928 (C.D. Cal. Feb. 15, 2023); see also Williams v. Borg, 139 F.3d 737, 740 (9th Cir. 1998) (federal habeas relief is available “only for constitutional violation, not for abuse of discretion”).
Claim Two also fails under AEDPA review. The California Court of Appeal's rejection of Claim Two was not objectively unreasonable under any clearly established decisional law of the United States Supreme Court. See 28 U.S.C. § 2254(d).
RECOMMENDATION
For the reasons discussed herein, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered denying and dismissing the Petition with prejudice.
Petitioner's request for an evidentiary hearing is denied. Federal habeas relief is unavailable regardless of the nature of any additional evidence Petitioner might present for the first time in federal court. See Cullen v. Pinholster, 563 U.S. 170, 185 (2011) (“Pinholster”); Gulbrandson v. Ryan, 738 F.3d 976, 993 n.6 (9th Cir. 2013), cert. denied, 573 U.S. 919 (2014) (Pinholster's preclusion of a federal evidentiary hearing applies to section 2254(d)(2) claims as well as section 2254(d)(1) claims). In any event, Petitioner has failed to demonstrate that an evidentiary hearing would reveal anything material to any of Petitioner's claims.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.
If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.