Andre William Furtado v. Warden, Kern Valley State Prison

• Court: District Court, N.D. California
• Decided: July 9, 2026
• Docket: 5:24-cv-02967
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ANDRE WILLIAM FURTADO, Case No. 24-cv-02967-EKL

8 Petitioner, ORDER DENYING PETITION, 9 v. MOTIONS FOR APPOINTMENT OF COUNSEL, AND CERTIFICATE OF 10 WARDEN, KERN VALLEY STATE APPEALABILITY PRISON, 11 Re: ECF Nos. 1, 20, 21 Respondent.

13 Petitioner Andre William Furtado, a pro se state prisoner, filed a petition for writ of habeas 14 corpus challenging the sufficiency of the evidence of his kidnapping conviction and alleging 15 ineffective assistance of counsel. ECF No. 1 at 5. Respondent filed an answer.1 ECF No. 9-1. 16 Furtado filed a traverse. See ECF No. 13. For the reasons discussed below, the petition for writ of 17 habeas corpus is DENIED. 18 I. LEGAL STANDARD 19 Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), federal 20 district courts may entertain a petition for writ of habeas corpus on “behalf of a person in custody 21 pursuant to the judgment of a State court only on the ground that he is in custody in violation of 22 the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The petition may 23 not be granted with respect to any claim that was adjudicated on the merits in state court unless the 24 state court’s adjudication of the claim: “(1) resulted in a decision that was contrary to, or involved 25

26 1 During the pendency of this proceeding, Furtado was transferred to Kern Valley State Prison. See ECF No. 22. The Clerk is directed to substitute the Warden of Kern Valley State Prison as the 27 Respondent in this matter. See Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) 1 an unreasonable application of, clearly established Federal law, as determined by the Supreme 2 Court of the United States; or (2) resulted in a decision that was based on an unreasonable 3 determination of the facts in light of the evidence presented in the State court proceeding.” Id. 4 § 2254(d). 5 “Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state court 6 arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if 7 the state court decides a case differently than [the] Court has on a set of materially 8 indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (discussing 28 U.S.C. 9 § 2254(d)(1)). “Under the ‘unreasonable application’ clause, a federal habeas court may grant the 10 writ if the state court identifies the correct governing legal principle from [the Supreme] Court’s 11 decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. A 12 federal habeas court “should ask whether the state court’s application of clearly established federal 13 law was objectively unreasonable,” id. at 409, and “may not issue the writ simply because that 14 court concludes in its independent judgment that the relevant state court decision applied clearly 15 established federal law erroneously or incorrectly,” id. at 411. 16 When there is no reasoned opinion from the highest state court to consider the petitioner’s 17 claims, the district court looks to the last reasoned opinion of the highest court to analyze whether 18 the state judgment was erroneous under the standard of § 2254(d). Ylst v. Nunnemaker, 501 U.S. 19 797, 801-06 (1991). In this case, the California Court of Appeal is the highest court to issue a 20 reasoned decision on Furtado’s claims. 21 II. FACTUAL BACKGROUND 22 A. Underlying Convictions 23 Furtado was convicted of several crimes against victim T. Doe, including human 24 trafficking (Cal. Pen. Code § 236.1(b)), kidnapping (Cal. Pen. Code § 207(a)), pimping of an adult 25 (Cal. Pen. Code § 266h(a)), encouraging another to become a prostitute (Cal. Pen. Code 26 § 266i(a)(2)), inflicting a corporal injury on a partner (Cal. Pen. Code § 273.5(a)), and failure to 27 register as a sex offender with a felony conviction (Cal. Pen. Code § 290(b)). People v. Furtado, 1 Furtado was ordered to pay a $10,000 restitution fine; no hearing was requested as to 2 Furtado’s ability to pay the fine. Id. at *3. Furtado was sentenced to a term of 85 years to life, 3 consecutive to a determinate term of 19 years and four months. Id. The California Court of 4 Appeal affirmed the judgment and the California Supreme Court denied review. Id. at *1; see 5 ECF No. 9-4 at 2192. 6 B. Relevant Trial Evidence 7 The California Court of Appeal summarized the relevant trial evidence as follows:

8 Interviewed by law enforcement in July 2019, Doe recounted the history of her relationship with Furtado and his abuse of her. Prior to 9 trial, however, Doe recanted what she told law enforcement, stating that she “made up a story against Mr. Furtado[.]” . . . Doe accordingly 10 was not among the prosecution’s witnesses but ultimately testified on behalf of Furtado. 11 Doe and Furtado met on Facebook in 2014. Although Doe thought of 12 Furtado as her boyfriend, Furtado also acted as her pimp. Almost from the beginning of their relationship, Furtado would beat Doe. 13 After one such beating that year sent Doe to the hospital, Furtado was arrested. Despite the beating, Doe continued working for Furtado 14 while he was in custody. 15 Furtado, 2023 WL 2446322, at *1. Doe and Furtado had an intermittent relationship over several 16 years. Id. at *1-2. Each time they began dating anew, Furtado resumed battering Doe. Id. 17 During an interview, Doe told police that Furtado would choke her with both hands until she was 18 nearly unconscious. Id. Doe sometimes believed she would die from the choking. Id. Once, 19 when the pair moved to Las Vegas only to return due to their financial situation, Furtado hit Doe, 20 chased her after she ran out of the car, and drove away after bystanders intervened. Id.

21 Doe left Furtado again and they did not talk for about a year. In 2018 or 2019, Doe got back in touch with Furtado on Instagram. 22 In February 2019, Doe called her brother and asked him or their father 23 to call Furtado’s parole officer to come to Furtado’s mother’s house in Watsonville to stop Furtado from beating her. Doe hoped the 24 parole officer would see that Furtado was in violation of an order for him to stay away from Doe. 25 Doe’s brother and father attempted to call Furtado’s parole agent, then 26 called the Watsonville Police Department, and then Doe’s brother called Doe back to see if she was okay. Furtado and Doe were 27 together at the time, eating at his mother’s house, and Furtado made and hitting her. Ripping off his ankle monitor, Furtado then grabbed 1 Doe by her arm and neck and dragged her from the house to her car, which was parked on the street. 2 Furtado told Doe she had made the house “hot” because the police 3 would be coming there. Furtado went back into the house to get money, so Doe got out of the car and ran away. Furtado followed her 4 in the car and told her he would throw her dog onto the freeway if she did not get back in the car. He also told her he was going to kill 5 himself. Doe got back into the car.

6 There were police three houses away at that time, but Furtado drove past them and was not stopped. Furtado and Doe drove to Salinas, 7 then San Francisco, then Watsonville (where they met Furtado’s mother), and then San Jose, where they got a room and stayed for 8 about a week.

9 While they were in San Jose, Furtado continued to beat Doe to the point that she had trouble walking and she was constantly 10 menstruating. Doe ended up checking in to the emergency room at Valley Medical Center hospital. 11 Furtado, 2023 WL2446322, at *2 (footnote omitted). 12 C. Habeas Exhibits 13 Respondent submitted several exhibits on habeas, including the trial and appellate record, 14 the parties’ appellate briefs and petitions, the California Court of Appeal’s opinion on direct 15 appeal, and the California Supreme Court’s order denying Furtado’s subsequent petition for 16 review. See ECF No. 9. 17 III. DISCUSSION 18 Furtado alleges that the evidence of Doe’s asportation was insufficient to convict him of 19 kidnapping and that trial counsel was ineffective in failing to request a hearing on Furtado’s ability 20 to pay the $10,000 restitution fine or call witnesses. The Court considers each claim below. 21 A. Sufficiency of Evidence 22 Furtado challenges the sufficiency of the evidence for kidnapping in two “claims” in his 23 petition, arguing that the prosecution failed to specify a distance Doe was moved and that any 24 asportation ended when Doe fled the car. See ECF No. 1 at 5. The California Court of Appeal 25 denied these arguments on the merits. 26 1. Legal Standard 27 The Due Process Clause “protects the accused against conviction except upon proof 1 beyond a reasonable doubt of every fact necessary to constitute the crime with which he is 2 charged.” In re Winship, 397 U.S. 358, 364 (1970). In federal habeas proceedings, a state 3 prisoner may raise a constitutional claim by alleging “that the evidence in support of his state 4 conviction cannot be fairly characterized as sufficient to have led a rational trier of fact to find 5 guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 321 (1979). In reviewing a 6 claim based on the sufficiency of the evidence, the relevant inquiry is whether, “after viewing the 7 evidence in the light most favorable to the prosecution, any rational trier of fact could have found 8 the essential elements of the crime beyond a reasonable doubt.” Id. at 319. “[T]his inquiry does 9 not require a court to ‘ask itself whether it believes that the evidence at the trial established guilt 10 beyond a reasonable doubt.’” Id. at 318-19. 11 This standard “must be applied with explicit reference to the substantive elements of the 12 criminal offense as defined by state law.” Jackson, 443 U.S. at 324 n.16; Juan H. v. Allen, 408 13 F.3d 1262, 1275-76 (9th Cir. 2005). Where the record supports conflicting inferences, a federal 14 habeas court must presume the trier of fact resolved any such conflicts in favor of the prosecution 15 and must defer to that resolution. Jackson, 443 U.S. at 326. The writ may not be granted unless 16 the district court concludes that, based on the evidence introduced during trial, “no rational trier of 17 fact could have found proof of guilt beyond a reasonable doubt.” Id. at 324. 18 2. Analysis 19 Furtado was convicted of kidnapping under California Penal Code section 207(a). To 20 prove this charge, the prosecutor must prove that “(1) a person was unlawfully moved by the use 21 of physical force or fear; (2) the movement was without the person’s consent; and (3) the 22 movement of the person was for a substantial distance.” People v. Jones, 108 Cal. App. 4th 455, 23 462 (2003). The third element is often referred to as “asportation.” Id. at 463. In determining 24 whether the distance was substantial enough to prove asportation, the trier of fact must consider 25 the totality of the circumstances. See People v. Johnson, 61 Cal. 4th 734, 771 (2015). This 26 includes “not only the actual distance the victim is moved, but also such factors as whether that 27 movement increased the risk of harm above that which existed prior to the asportation, decreased 1 attempts to escape and the attacker’s enhanced opportunity to commit additional crimes.” Id. 2 (citation omitted). While the distance traveled must be more than de minimis, there is no 3 minimum distance required for kidnapping. See People v. Singh, 42 Cal. App. 5th 175, 187-88 4 (2019) (citing People v. Robertson, 208 Cal. App. 4th 965, 986 (2012)). 5 Notably, Furtado does not dispute that the prosecution introduced evidence showing he 6 forcefully moved Doe from inside his mother’s home into the car, arguing instead that this 7 evidence should not be considered because Doe testified that no kidnapping occurred during his 8 trial. See ECF No. 13 at 5. An assertion that there was competing evidence does not demonstrate 9 an insufficiency of evidence. See Jackson, 443 U.S. at 319 (federal habeas court must draw all 10 reasonable inferences in favor of prosecution). 11 To the extent Furtado argues that the prosecution was required to provide a specific 12 numerical distance to show “substantial movement” for purposes of asportation, Furtado’s 13 argument fails for two reasons. First, the Court of Appeal concluded that “the jury was entitled to 14 infer that the distance from the front door of a single-family residence to the car was more than 15 merely negligible” based on testimony that neighbors saw Furtado dragging Doe out of the home 16 and failed to intercede. See Furtado, 2023 WL 2446322, at *4; see Ngo v. Giurbino, 651 F.3d 17 1112, 1114-15 (9th Cir. 2011) (“Circumstantial evidence and inferences drawn from it may be 18 sufficient to sustain a conviction.”) (citation modified). Second, Furtado’s argument that the 19 Court of Appeal erred because “no [numerical] distance was ever introduced” at trial (ECF No. 12 20 at 6) challenges the Court of Appeal’s interpretation of state law, namely, whether a conviction for 21 kidnapping requires the prosecution to prove a victim was moved a specific numerical distance. 22 This cannot form the basis for federal habeas relief unless such an interpretation violated clearly 23 established federal law. See Jackson v. Santoro, No. 19-cv-00282-AG, 2019 WL 5978884, *5 24 (C.D. Cal. Jun. 14, 2019) (finding that federal habeas court is bound by state court’s interpretation 25 that 10-foot distance was not insufficient to show asportation); Bradshaw v. Richey, 546 U.S. 74, 26 76 (2005) (“[A] state court’s interpretation of state law, including one announced on direct appeal 27 of the challenged conviction, binds a federal court sitting in habeas corpus.”). As Furtado has not 1 kidnapping law. 2 Finally, the California Court of Appeal’s conclusion that the prosecution sufficiently 3 proved asportation even if the kidnapping ended once Doe exited the vehicle is supported by the 4 record. Furtado, 2023 WL 2446322 at *4-5; see also Jackson, 443 U.S. at 319. As discussed in 5 the appellate opinion, the jury reasonably could have determined that the evidence that Furtado 6 beat Doe, dragged her from the home into the car, and caused Doe to fear for her life – along with 7 evidence that he did so to “keep[] her from those her family called on to protect her” – collectively 8 was sufficient to show that Doe’s asportation was more than de minimis and increased the risk of 9 harm to Doe. See Furtado, 2023 WL 2446322, at *4-5; see also Singh, 42 Cal. App. 5th at 188 10 (movement to or from a vehicle can substantially increase risk of harm to victim); People v. 11 Leavel, 203 Cal. App. 4th 823, 834 (2012) (emotional or psychological harm may be considered 12 by jury in determining whether asportation increased risk of harm); People v. Martinez, 20 Cal. 13 4th 225 (1999), overruled on other grounds by, People v. Fontenot, 9 Cal. 5th 57, 70 (2019) (jury 14 may consider whether asportation decreased the likelihood of detection in deciding whether 15 movement was substantial). While Furtado argues that the evidence cited by the Court of Appeal 16 can be interpreted in his favor, he has not shown that no rational trier of fact could have found 17 proof of guilt beyond a reasonable doubt. See Jackson, 443 U.S. at 324; see also Boyd v. 18 McEwen, No. CV-13-5038 CJC, 2014 WL 1419904, *14 (C.D. Cal. Apr. 14, 2014) (state court 19 reasonably concluded moving approximately five feet to the door of a bar was sufficient to show 20 asportation based on totality of circumstances). 21 The state court’s rejection of this claim was reasonable and is entitled to AEDPA 22 deference. See 28 U.S.C. § 2254(d). The claim is therefore DENIED. 23 B. Ineffective Assistance of Trial Counsel 24 Furtado argues that his trial attorney rendered ineffective assistance by “[f]ail[ing] to 25 object to victim restitution when the victim was supportive and backing the defendant.”2 ECF 26

27 2 After Respondent argued in the answer that any claim challenging victim restitution, rather than 1 No. 1 at 5. He also argues that his trial attorney “failed to bring any witnesses including 2 defendants [sic] mother who was present at times of fights and strategically could [have] helped 3 defendant.” Id. In his traverse, Furtado refers to the potential testimony from his mother as 4 “mitigating,” but does not provide any further information about the nature of her potential 5 testimony. ECF No. 13 at 8. 6 1. Restitution Fine 7 Furtado’s claim of ineffective assistance of trial counsel, as it pertains to counsel’s failure 8 to request a hearing on his ability to pay the restitution fine, is not cognizable on federal habeas 9 review. Federal courts have “repeatedly recognized that the imposition of a fine, by itself, is not 10 sufficient to meet § 2254’s jurisdictional requirements.” Bailey v. Hill, 599 F.3d 976, 979 (9th 11 Cir. 2010) (citing Williamson v. Gregoire, 151 F.3d 1180, 1183 (9th Cir. 1998)). A petitioner’s 12 custodial status does not transform these claims, which do not “call into question the lawfulness of 13 conviction or confinement” or “seek immediate or speedier release,” into claims cognizable under 14 28 U.S.C. § 2254. Id. at 980 (citation modified). Indirect challenges to restitution fines – even if 15 the petitioner asserts a constitutional violation for ineffective assistance of counsel – similarly fail 16 to state a cognizable federal habeas claim. See id. at 981-82 (agreeing with Seventh Circuit’s 17 conclusion that a petitioner’s “‘attack on counsel’s handling of [a] restitution amount simply does 18 not state a cognizable claim for relief under § 2254.’”). 19 As Furtado does not present a cognizable claim under 28 U.S.C. § 2254, this claim is 20 DENIED. 21 2. Failure to Call Witnesses 22 Furtado also argues that trial counsel was ineffective by failing to call witnesses at trial, 23 specifically noting the failure to call his mother. Respondent asserts that this claim is 24 unexhausted, an assertion that Furtado does not dispute in his traverse. See ECF No. 9-1 at 15; 25 ECF No. 13 at 6-9. 26 Under AEDPA, a federal court cannot grant habeas corpus relief unless the petitioner “has 27 exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). 1 disposed of on the merits by the highest court in the state. See Duncan v. Henry, 513 U.S. 364, 2 365 (1995); Ybarra v. McDaniel, 656 F.3d 984, 991 (9th Cir. 2011). As a matter of comity, a 3 federal court will not entertain a habeas petition unless the petitioner has exhausted the available 4 state judicial remedies on every ground presented in it. Rose v. Lundy, 455 U.S. 509, 518-19 5 (1982). Notwithstanding the exhaustion requirement, a district court may proceed to deny an 6 unexhausted claim on the merits in limited circumstances. See 28 U.S.C. § 2254(b)(2) (“An 7 application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of 8 the applicant to exhaust the remedies available in the courts of the State.”). “[A] federal court may 9 deny an unexhausted petition on the merits only when it is perfectly clear that the applicant does 10 not raise even a colorable federal claim.” Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005). 11 Accordingly, notwithstanding the claim’s lack of exhaustion, the Court concludes that Furtado is 12 not entitled to relief. 13 In order to prevail on a claim of ineffectiveness of counsel, a petitioner must establish that 14 (1) counsel’s performance was deficient, i.e., that it fell below an “objective standard of 15 reasonableness” under prevailing professional norms, Strickland v. Washington, 466 U.S. 668, 16 687-68 (1984); and (2) he was prejudiced by counsel’s deficient performance, i.e., that “there is a 17 reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding 18 would have been different.” Id. at 694. “The likelihood of a different result must be substantial, 19 not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (citing Strickland, 466 U.S. at 20 693). Moreover, where a petitioner challenges the failure to interview or call witnesses, mere 21 speculation that a witness might have given helpful information if interviewed or called to testify 22 is not enough to establish ineffective assistance. See Bragg v. Galaza, 242 F.3d 1082, 1087 (9th 23 Cir.), amended, 253 F.3d 1150 (9th Cir. 2001). To establish prejudice, a petitioner must show that 24 the witness was likely to have been available to testify, that the witness would have given the 25 proffered testimony, and that the witness’s testimony created a reasonable probability that the jury 26 would have reached a verdict more favorable to the petitioner. Alcala v. Woodford, 334 F.3d 862, 27 872-73 (9th Cir. 2003), abrogated on other grounds by, Crawford v. Washington, 541 U.S. 36 1 Furtado has not shown ineffective assistance of counsel on this basis. He has not shown 2 that testimony by any of the potential witnesses he references would have created a reasonable 3 probability of a more favorable verdict. In terms of the proffered testimony by his mother, 4 Furtado offers little detail beyond general or conclusory statements. Traverse, ECF No. 13 at 8 5 (noting that his “mother was present on occasions, and the kidnapping happened at her home, also 6 his mother could testify about their relationship, and some of the incidents being she was present 7 at times”). Furtado does not demonstrate how his mother’s presence or her testimony about their 8 relationship would have resulted in a more favorable outcome. See Scott v. Felker, No. C-06-1147 9 JSW, 2008 WL 5411477, *21 (N.D. Cal. Dec. 29, 2008) (denying claim of ineffective assistance 10 of counsel where plaintiff failed to provide anything more than “self serving speculative assertions 11 regarding [witness’s] potential value”). As to the “other[]” witnesses, ECF No. 13 at 7, Furtado 12 does not provide their names or identify them through description; nor does he describe their 13 proffered testimony or how their testimony would have resulted in a more favorable verdict. Id. at 14 7-8; see Kiedel v. Terry, 105 Fed. App’x 149, 150 (9th Cir. 2004) (petitioner did not show 15 ineffective assistance of counsel for failure to call witness where petitioner did not provide 16 information about witness’s proffered testimony); Morrow v. Ignacio, 183 Fed. App’x 653, 654- 17 55 (9th Cir. 2006) (petitioner’s claims of ineffective assistance faulting counsel for “not fil[ing] 18 certain discovery, call[ing] certain witnesses . . . are disagreements of case presentation and 19 tactical decisions that are within counsel’s professional judgment, to which [courts] give great 20 deference.”). 21 Because Furtado does not present a colorable federal claim, this claim is DENIED. 22 IV. CONCLUSION 23 The state court’s adjudication of Furtado’s claims did not result in a decision that was 24 contrary to, or involved an unreasonable application of, clearly established federal law; nor did it 25 result in a decision that was based on an unreasonable determination of the facts in light of the 26 evidence presented in the state court proceeding. The petition for writ of habeas corpus is 27 DENIED. ] In addition, a certificate of appealability will not issue. Furtado has not shown that “jurists 2 || of reason would find it debatable whether the petition states a valid claim of the denial of a 3 || constitutional right.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Furtado may seek a 4 || certificate of appealability from the United States Court of Appeals for the Ninth Circuit. 5 The Clerk shall TERMINATE all pending motions as moot,’ enter judgment in favor of 6 || Respondent, and close the file. 7 IT IS SO ORDERED. 8 || Dated: July 9, 2026 9 10 umi K. Lee 1] United States District Judge a 12

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Z 18 19 20 21 22 23 24 3 Furtado recently filed two motions seeking appointment of counsel. ECF Nos. 20, 21. These 25 || motions were filed after the petition was fully briefed and are thus moot. Regardless of their timing, the motions do not show a likelihood of success on the merits or any other exceptional 26 || circumstances warranting the appointment of counsel. See Lassiter v. Dep't of Social Services, 452 U.S. 18, 25 (1981) (there is no constitutional right to counsel in a civil case unless the party 97 || seeking counsel might lose their physical liberty as a result of litigation); Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984) (decision whether to appoint counsel rests within “the sound 28 discretion of the trial court” and is generally granted in exceptional circumstances). Accordingly, the motions are DENIED.