Azcona v. Johnson

• Court: District Court, N.D. California
• Decided: February 9, 2024
• Docket: 4:22-cv-01317
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 BRAD AZCONA, Case No. 22-cv-01317-JST

8 Petitioner, ORDER DENYING PETITION FOR 9 v. WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF 10 PATRICK COVELLO, APPEALABILITY; DIRECTIONS TO CLERK Respondent. 11

12 13 Petitioner, an inmate at Mule Creek State Prison,1 filed a pro se petition for a writ of 14 habeas corpus under 28 U.S.C. § 2254 challenging his state conviction. The Court found the 15 petition, ECF No. 1 (“Petition”), stated cognizable claims which merited an answer from 16 Respondent. ECF No. 10. Respondent filed an answer on the merits, ECF No. 13 (“Ans.”), and 17 Petitioner filed a traverse, ECF No. 17 (“Traverse”). For the reasons set forth below, Court will 18 deny the petition. 19 I. BACKGROUND 20 On November 17, 2017, Petitioner was found guilty by a jury in Monterey County 21 Superior Court (“trial court”) of two counts of first-degree murder with special circumstances, two 22 counts of attempted murder, one count of negligent discharge of a firearm, three counts of being a 23 felon in illegal possession of a firearm, one count of assault with a deadly weapon, and one count 24 of attempted second degree robbery. See Ans., Ex. A (“Clerk’s Transcript”) at 225-38. The jury 25 also found firearm enhancements to be warranted. See id. at 327-43. Petitioner was sentenced to 26

27 1 In accordance with Habeas Rule 2(a) and Rule 25(d)(1) of the Federal Rules of Civil Procedure, 1 life in prison without possibility of parole, plus an additional sentence of 156 years and 4 months. 2 See id. at 380-87. 3 On December 10, 2020, the California Court of Appeal (“state appellate court”) reversed in 4 part and affirmed in part the trial court’s judgment, Ans., Ex. E; see also People v. Azcona, 58 Cal. 5 App. 5th 504 (Cal. Ct. App. 2020), as modified (Jan. 11, 2021). Following the partial reversal, 6 “only counts 4-6 and 10-11 remain[ed].” Ans. at 2 n.3. That is, Petitioner was convicted of two 7 counts of first degree murder with special circumstances for the killings of Carlos Robles and 8 Ramon Herrera; one count of attempted murder with an enhancement for personal use of a firearm 9 and causing great bodily injury for the shooting of Moises Sanchez; and two counts of illegal 10 possession of a firearm. Compare id. with Ans. at 1; see also Clerk’s Tr. at 225-39 (Second 11 Amended Information, pairing each victim with each count). 12 The California Supreme Court summarily denied a petition for review on February 24, 13 2021. Ans., Ex. G. 14 Petitioner filed the instant habeas petition on or before March 2, 2022. See Pet. at 1 15 (stating the Petition was received by the Court on that date). 16 II. STATEMENT OF FACTS 17 The following facts are taken from the opinion of the state appellate court on direct appeal:

18 I. BACKGROUND

19 Over a one-month period in the late summer of 2015, defendant, seemingly at random, committed a series of shootings and related 20 crimes in Salinas. On August 21, the first victim was shot in the arm as he sat on his front porch playing guitar. Defendant fired over 21 a dozen shots while riding past on a bicycle. Some of the bullets struck a nearby house. Police recovered 13 nine-millimeter casings 22 from the scene.

23 About two weeks later, Carlos Robles was a passenger in a friend’s car when defendant rode up to the driver’s side on his bike, pulled 24 out a gun, and started firing. When Robles jumped out and ran, defendant shot him multiple times. He died at the scene. His friend, 25 the driver of the car, was shot in the hand and a bullet glanced off his head. The car was hit by eight bullets, and police found 15 nine- 26 millimeter casings in the area.

27 Two days later, someone matching defendant’s description assailant brandished a gun and held it to the man’s head, demanding 1 to know if he claimed affiliation with any gang. The man put his head down and drove away, bracing for an impact that never came. 2 A few days after that, defendant tried to rob a 16-year-old boy. He 3 demanded “everything that [he had],” pulled out a gun and hit the boy with it on the side of the face. He left when a bystander took 4 out a phone to call police. Defendant’s final victim was Ramon Herrera, whose body was found that same night in the Chinatown 5 area of Salinas, lying faceup in the middle of a road with nine bullet wounds. Herrera had died within minutes of being shot. 6 Police officers investigating the crimes were familiar with defendant 7 from prior contacts. Most of the surviving victims either identified defendant as the perpetrator in a photo lineup or provided a 8 description consistent with his appearance, and surveillance videos placed defendant near the Chinatown murder scene around the time 9 of the shooting. A firearms expert examined the collected bullet casings and concluded that casings from the first shooting and the 10 shooting of the two victims in the car were fired from the same gun. A police informant reported defendant admitted killing both Carlos 11 Robles and Ramon Herrera.

12 The district attorney charged defendant with two counts of premeditated murder (Pen. Code, §§ 187, 190.2, subd. (a)(3)) with a 13 firearm use enhancement (Pen. Code, § 12022.53, subds. (b)–(d)); two counts of attempted premeditated murder (Pen. Code §§ 187, 14 664) with an enhancement for using a firearm to cause great bodily injury (Pen. Code, § 12022.53, subd. (d)); three counts of assault 15 with a deadly weapon (Pen. Code, § 245, subd. (a) with a firearm use enhancement (Pen. Code § 12022.53, subd. (a)); four counts of 16 being a felon in possession of a firearm (Pen. Code § 29800, subd. (a)(1)); one count of negligent discharge of a firearm (Pen. Code, § 17 246.3); and one count of attempted robbery (Pen. Code, §§ 211, 664). Further sentencing enhancements for a prior serious felony 18 conviction (Pen. Code, § 667, subd. (a)(1)); prior strike (Pen. Code § 1170.12, subd. (c)(1)); and prior prison term (Pen. Code, § 667.5, 19 subd. (b)) were also alleged.

20 A jury convicted defendant of all charges, except for three counts on which it could not reach a verdict (the two counts of assault with a 21 deadly weapon and one count of possessing a firearm as a felon, all stemming from the incident with the father and son victims). The 22 jury also found true the special circumstance allegation that defendant committed multiple murders. In a bifurcated proceeding, 23 the trial court found true defendant’s prior conviction. Defendant was sentenced to life without parole, consecutive to a term of 156 24 years four months. 25 Azcona, 58 Cal. App. 5th at 508–09. 26 / / / 27 / / / 1 III. DISCUSSION 2 A. Legal Standard 3 This Court may entertain a petition for a writ of habeas corpus “in behalf of a person in 4 custody pursuant to the judgment of a State court only on the ground that he is in custody in 5 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose v. 6 Hodges, 423 U.S. 19, 21 (1975). The writ may not be granted with respect to any claim that was 7 adjudicated on the merits in state court unless the state court’s adjudication of the claim: “(1) 8 resulted in a decision that was contrary to, or involved an unreasonable application of, clearly 9 established Federal law, as determined by the Supreme Court of the United States; or (2) resulted 10 in a decision that was based on an unreasonable determination of the facts in light of the evidence 11 presented in the State court proceeding.” 28 U.S.C. § 2254(d). 12 “Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state court 13 arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if 14 the state court decides a case differently than [the] Court has on a set of materially 15 indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000). The only definitive 16 source of clearly established federal law under 28 U.S.C. § 2254(d) is in the holdings (as opposed 17 to the dicta) of the Supreme Court as of the time of the state court decision. Williams, 529 U.S. at 18 412; Brewer v. Hall, 378 F.3d 952, 955 (9th Cir. 2004). While circuit law may be “persuasive 19 authority” for purposes of determining whether a state court decision is an unreasonable 20 application of Supreme Court precedent, only the Supreme Court’s holdings are binding on the 21 state courts and only those holdings need be “reasonably” applied. Clark v. Murphy, 331 F.3d 22 1062, 1069 (9th Cir. 2003), overruled on other grounds by Lockyer v. Andrade, 538 U.S. 63 23 (2003). 24 “Under the ‘unreasonable application’ clause, a federal habeas court may grant the writ if 25 the state court identifies the correct governing legal principle from [the Supreme Court’s] 26 decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Williams, 27 529 U.S. at 413. “Under § 2254(d)(1)’s ‘unreasonable application’ clause, . . . a federal habeas 1 the relevant state-court decision applied clearly established federal law erroneously or 2 incorrectly.” Id. at 411. A federal habeas court making the “unreasonable application” inquiry 3 should ask whether the state court’s application of clearly established federal law was “objectively 4 unreasonable.” Id. at 409. The federal habeas court must presume correct any determination of a 5 factual issue made by a state court unless the petitioner rebuts the presumption of correctness by 6 clear and convincing evidence. 28 U.S.C. § 2254(e)(1). 7 Here, as noted above, the California Supreme Court summarily denied Petitioner’s petition 8 for review. See supra at 2; Ans., Ex. G. The California Court of Appeal, on direct review, 9 addressed all the claims in the instant petition. Ans., Ex. E. The Court of Appeal thus was the 10 highest court to have reviewed the claims in a reasoned decision, and it is that decision that this 11 Court reviews herein. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Barker v. Fleming, 12 423 F.3d 1085, 1091-92 (9th Cir. 2005). 13 “On federal habeas review, AEDPA ‘imposes a highly deferential standard for evaluating 14 state-court rulings’ and ‘demands that state-court decisions be given the benefit of the doubt.’” 15 Felkner v. Jackson, 562 U.S. 594, 598 (2011) (per curiam) (citation omitted). 16 B. Claims and Analysis 17 Petitioner raises the following grounds for federal habeas relief: (1) prosecutorial 18 misconduct for making allegedly improper statements during closing argument which were 19 prejudicial; and (2) ineffective assistance of counsel for failing to object to the prosecution’s 20 improper statements. ECF No. 10 at 2 (finding these claims cognizable and citing Pet. at 6). 21 Respondent argues that Claim No. 1 was procedurally defaulted, and that Claim No. 2 fails 22 on the merits because there was no misconduct warranting an objection from counsel. The Court 23 first addresses Respondent’s procedural argument as to Claim No. 1. Although the Court agrees 24 that Claim No. 1 was procedurally defaulted, it will discuss the merits of Claim No. 1 because 25 doing so is necessary to address Claim No. 2. 26 1. Prosecutorial Misconduct Claim 27 Respondent argues that Claim No. 1 was procedurally defaulted because Petitioner did not 1 fact, fail to object at trial. See generally, Ans., Ex. B (“Reporter’s Transcript”). The state 2 appellate court found the failure to object dispositive of Claim No. 1. See generally, Azcona, 58 3 Cal. App. 5th at 515-17. Accordingly, these claims were procedurally defaulted. 4 1. The state appellate court’s findings 5 In Claim No. 1, Petitioner argues that the prosecutor used inappropriate hypotheticals, 6 specifically the ideas of driving through a yellow light or buying a loaf of bread, to illustrate the 7 concept of deliberation. See Pet. at 6, 8. 8 The state appellate court concluded that Petitioner’s claim was both forfeited and meritless. 9 See Azcona, 58 Cal. App. 5th at 515-17. The state appellate court discussed this claim as follows:

10 C. Prosecutorial Misconduct

11 Defendant also contends the prosecutor mischaracterized the concept of premeditation during closing argument. Although the 12 issue was forfeited for appeal because defense counsel did not object to the prosecutor’s argument, we elect to address the merits, both 13 because it is important to resolve allegations of prosecutorial misconduct and because it is judicially economical to do so here, 14 given defendant’s alternative contention of ineffective assistance of counsel based on the failure to object. 15 It is considered misconduct to misstate the law to the jury, and bad 16 faith is not required. (People v. Centeno (2014) 60 Cal.4th 659, 666, 180 Cal.Rptr.3d 649, 338 P.3d 938. But a prosecutor is allowed to 17 vigorously argue the case and is afforded “significant leeway” in discussing the facts and the law in closing argument. (People v. 18 Centeno, supra, at p. 666, 180 Cal.Rptr.3d 649, 338 P.3d 938; see People v. Sandoval (1992) 4 Cal.4th 155, 183 [14 Cal. Rptr. 2d 342, 19 841 P.2d 862]. Defendant asserts the prosecutor misstated the law by using two analogies to explain the concept of premeditation, 20 which is relevant to the charges of premeditated murder and attempted premeditated murder. The prosecutor argued that the 21 amount of time required for premeditation is no greater than that which would be required to decide whether to stop at a yellow light, 22 or to decide which loaf of bread to buy at a store:

23 “Everybody here has traveled into an intersection . . . where the light turns yellow. Okay? When you travel into that intersection and that 24 light turns yellow and you’re going to make a decision to go through that light, [. . . ] what are the two things you look for? Cars and cops. 25 That’s what you’re going to look for. And then if you decide to go through, you’ve looked, you’ve thought about it. Are there cars? 26 Are there cops? Happens to everybody. Common sense. [¶] So when you do that, you have deliberate[d], you thought about it 27 before you’ve done it. What are the consequences? I could hit a car, went through that light. You deliberated and premeditated it. It’s as 1 simple as that.

2 Another example is if you’re walking down the bread aisle . . . and maybe you forget your list and so you call the wife and say, hey, I 3 forgot the bread, I forgot what kind of bread. Get some healthy bread, get some very healthy bread. So you look, look, look, boom, 4 you grab. You’ve thought about it, you’ve contemplated it, you deliberated it, and you acted. It can happen as fast as that.” 5 Analogies in closing argument have provided fertile ground for 6 reversal. See, e.g., People v. Centeno, supra, 60 Cal.4th at p. 667, 180 Cal.Rptr.3d 649, 338 P.3d 938 [addressing an analogy for 7 reasonable doubt, noting that the “case law is replete with innovative but ill-fated” attempts to explain the standard, and discouraging the 8 practice]. But we find no fault with the analogies used here. Indeed, the Supreme Court found nothing wrong with essentially the 9 same yellow light analogy in People v. Avila (2009) 46 Cal.4th 680, 715, 94 Cal.Rptr.3d 699, 208 P.3d 634 (Avila)). Defendant contends 10 the prosecutor’s argument here trivialized the concept of premeditated murder compared to Avila, where the prosecutor 11 expressly acknowledged that “‘[d]eciding to and moving forward with the decision to kill’” was not the same, since it involves “‘great 12 dire consequences.’” (Ibid.)

13 In assessing a claim that counsel misstated the law, we view the argument as a whole to determine whether it is reasonably likely the 14 jury was misled. (Avila, supra, 46 Cal.4th at p. 714, 94 Cal.Rptr.3d 699, 208 P.3d 634. Viewing the prosecutor’s two analogies in 15 context, we see no suggestion that the decision to kill someone is no more consequential than deciding to drive through a yellow light or 16 which loaf of bread to buy. Rather, the prosecutor’s point was that the time required for premeditation is no greater than the time 17 needed to make those other (far less consequential) decisions. And the prosecutor specifically called to the jury’s attention the 18 instruction regarding premeditation, which states that it is not the length of time spent considering whether to kill that matters but 19 rather whether there was sufficient reflection and consideration of the consequences. (CALCRIM No. 521.) As the gist of the 20 prosecutor’s argument was consistent with that instruction, there was no likelihood of misleading the jury and no prosecutorial 21 misconduct. 22 Id. 23 Thus, the state appellate court reached a particularized, record-based finding that petitioner 24 failed to object as to Claim No. 1, and also determined that the claim failed on the merits. 25 2. Procedural Default 26 A federal court will not review questions of federal law decided by a state court if the 27 decision also rests on a state law ground that is independent of the federal question and adequate 1 to support the judgment. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). In the context of 2 direct review by the United States Supreme Court, the “adequate and independent state ground” 3 doctrine goes to jurisdiction; in federal habeas cases, in whatever court, it is a matter of comity 4 and federalism. Id. The procedural default rule is a specific instance of the more general 5 “adequate and independent state grounds” doctrine. Wells v. Maass, 28 F.3d 1005, 1008 (9th Cir. 6 1994). In cases in which a state prisoner has defaulted his federal claim in state court pursuant to 7 an independent and adequate state procedural rule, federal habeas review of the claims is barred 8 unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the 9 alleged violation of federal law, or demonstrate that failure to consider the claims will result in a 10 fundamental miscarriage of justice. Coleman, 501 U.S. at 750. 11 Here, the state appellate court rejected Claim No. 1 because Petitioner did not make the 12 necessary objection in the trial court. See Azcona, 58 Cal. App. 5th at 515. The Ninth Circuit has 13 specifically held that failure to comply with the California contemporaneous objection rule results 14 in a procedural default. See Fairbank v. Ayers, 650 F.3d 1243, 1256-57 (9th Cir. 2011); Rich v. 15 Calderon, 187 F.3d 1064, 1069-70 (9th Cir. 1999). Moreover, the Ninth Circuit has applied 16 California’s contemporaneous objection rule in affirming denial of a federal petition on grounds of 17 procedural default where there was a complete failure to object at trial. See Inthavong v. 18 Lamarque, 420 F.3d 1055, 1058 (9th Cir. 2005); Paulino v. Castro, 371 F.3d 1083, 1092-93 (9th 19 Cir. 2004); Vansickel v. White, 166 F.3d 953, 957-58 (9th Cir. 1999). Accordingly, Claim No. 1 20 was procedurally defaulted. See Coleman, 501 U.S. at 729-30. 21 There is an exception to procedural default that applies when a petitioner shows “cause” 22 for the failure to comply with the state procedural rule and “prejudice” arising from the default, or 23 that the failure to consider the claim will result in a fundamental miscarriage of justice. Coleman, 24 501 U.S. at 750. To establish cause, a petitioner must show that “some objective factor external to 25 the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Murray v. 26 Carrier, 477 U.S. 478, 488 (1986). To establish a “fundamental miscarriage of justice,” a 27 petitioner must demonstrate “a constitutional violation has probably resulted in the conviction of 1 quotation omitted). A claim of actual innocence is rarely met and must be based on reliable 2 evidence not presented at trial. Casey v. Moore, 386 F.3d 896, 921 n.27 (9th Cir. 2004). 3 The Ninth Circuit has recognized that the petitioner bears the burden of establishing cause 4 and prejudice, or a fundamental miscarriage of justice. See Madrid v. Gregoire, 187 F.3d 648 (9th 5 Cir. 1999) (finding petitioner had not borne his burden of establishing cause); Woolery v. Arave, 8 6 F.3d 1325, 1331 (9th Cir. 1993) (“the burden of showing ‘cause and prejudice’ is on 7 the petitioner”); Blumberg v. Cal. Med. Facility, 967 F.2d 584 (9th Cir. 1992) (“The burden is on 8 the petitioner to show cause and prejudice.”). 9 Here, Petitioner argued that he defaulted Claim No. 1 due to ineffective assistance of 10 counsel.2 See Pet. at 6, 8. To establish good cause on the ground of ineffective assistance of 11 counsel, a petitioner must show that (1) counsel made errors so serious that counsel was not 12 functioning as the counsel guaranteed the defendant by the Sixth Amendment, and (2) the 13 deficient performance prejudiced the defense. Loveland v. Hatcher, 231 F.3d 640, 644 (9th Cir. 14 2000) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). Were Petitioner’s 15 ineffective assistance claim to have merit, it could excuse his procedural default. However, as 16 explained below, Petitioner’s trial counsel did not render ineffective assistance, and so Claim No. 17 1 remains procedurally defaulted. 18 3. Merits 19 A defendant’s due process rights are violated when a prosecutor’s misconduct renders a 20 trial “fundamentally unfair.” Darden v. Wainwright, 477 U.S. 168, 181 (1986). Under Darden, 21 the first issue is whether the prosecutor’s remarks were improper; if so, the next question is 22 whether such conduct infected the trial with unfairness. Tan v. Runnels, 413 F.3d 1101, 1112 (9th 23 Cir. 2005); see also Deck v. Jenkins, 768 F.3d 1015, 1023 (9th Cir. 2014) (recognizing that 24 Darden is clearly established federal law regarding prosecutor’s improper comments for AEDPA 25 review purposes). A prosecutorial misconduct claim is decided “on the merits, examining the 26 entire proceedings to determine whether the prosecutor’s remarks so infected the trial with 27 1 unfairness as to make the resulting conviction a denial of due process.” Johnson v. Sublett, 63 2 F.3d 926, 929 (9th Cir. 1995) (citation omitted); see Trillo v. Biter, 769 F.3d 995, 1001 (9th Cir. 3 2014) (“Our aim is not to punish society for the misdeeds of the prosecutor; rather, our goal is to 4 ensure that the petitioner received a fair trial.”). Even if there was misconduct, a habeas petitioner 5 is not entitled to relief unless the misconduct “‘had substantial and injurious effect or influence in 6 determining the jury’s verdict.’” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quoting 7 Kotteakos v. United States, 328 U.S. 750, 776 (1946)). In other words, state prisoners seeking 8 federal habeas relief may obtain plenary review of constitutional claims of trial error, but are not 9 entitled to habeas relief unless the error resulted in “actual prejudice.” Id. (citation omitted); see 10 e.g., Johnson, 63 F.3d at 930 (finding prosecutorial vouching “could not have had substantial 11 impact on the verdict necessary to establish reversible constitutional error” under Brecht). 12 Here, a review of the record reveals that the challenged statements were not misconduct. 13 Petitioner first challenges the prosecutor’s comparison of Petitioner’s deliberation and 14 premeditation to that required to decide whether to drive through a yellow light, contending that 15 the decision to commit murder is far more complicated. See Pet. at 6, 8. Read in context, the 16 prosecutor’s analogy does not suggest that the decision to commit murder is simple. Rather, the 17 prosecutor used the example of driving through a yellow light to illustrate that a person can 18 consider the issues necessary to arrive at a decision in a relatively brief period of time before 19 making that decision. See Ans., Ex. B at 1857:1-19. Indeed, the preface to the yellow-light 20 example makes clear the example was designed to show that a complicated decision could be 21 made in a short period of time, rather than to minimize the significance of the premeditation and 22 deliberation necessary to commit murder: “[The l]ength of time person spends considering does 23 not alone determine whether the killing was deliberate, premeditated. The length of time is not 24 that critical. The test is the extent of the reflection, not the length of time.” (Id. at 1856:24-28. 25 This example, used for this purpose, has been upheld by the California Supreme Court and by 26 multiple federal district courts. See People v. Avila, 46 Cal. 4th 680, 715 (2009); see also, e.g., 27 Jennings v. Santoro, No. EDCV 15-1185-GW (KS), 2016 WL 8608479, at *22–*23 (C.D. Cal. 1 15-1185-GW(KS), 2017 WL 1138122 (C.D. Cal. Mar. 27, 2017), cert. of appealability denied sub 2 nom. Jennings v. Spearman, No. 17-55799, 2018 WL 2734891, at *1 (9th Cir. Feb. 23, 2018) 3 (denying certificate of appealability “because appellant has not made a ‘substantial showing of the 4 denial of a constitutional right’”). Likewise, the prosecutor’s example of a grocery store purchase 5 has been upheld when it was given to illustrate that a decision could be made quickly. See 6 Montgomery v. Matteson, No. 5:21-CV-00501-FWS-AFM, 2022 WL 16556042, at *14 (C.D. Cal. 7 Sept. 14, 2022) (finding an example in which a shopper purchased a jar of pickles did not violate 8 due process), report and recommendation adopted, No. 5:21-CV-00501-FWS-AFM, 2022 WL 9 16556011 (C.D. Cal. Oct. 31, 2022). 10 The state appellate court held that the prosecutor’s analogies did not constitute misconduct, 11 because under California law deliberation and premeditation do not require any particular length 12 of time. This Court cannot second-guess the state court’s determination conclusion as to what 13 California law does or does not say regarding deliberation and premeditation. See Bradshaw v. 14 Richey, 546 U.S. 74, 76 (2005) (per curiam) (“[A] state court’s interpretation of state law, 15 including one announced on direct appeal of the challenged conviction, binds a federal court 16 sitting in habeas corpus.”) (citations omitted); Hicks on behalf of Feiock v. Feiock, 485 U.S. 624, 17 629–30 (1988) (“We are not at liberty to depart from the state appellate court’s resolution of these 18 issues of state law. Although Petitioner marshals a number of sources in support of the contention 19 that the state appellate court misapplied state law on these two points, the California Supreme 20 Court denied review of this case, and we are not free in this situation to overturn the state court’s 21 conclusions of state law.”) (footnote omitted). Moreover, based on this Court’s review of 22 California cases, the state appellate court appears accurately to have summarized California law. 23 See, e.g., People v. Koontz, 27 Cal. 4th 1041, 1080 (2002) (“The process of premeditation and 24 deliberation does not require any extended period of time. The true test is not the duration of time 25 as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity 26 and cold, calculated judgment may be arrived at quickly.”). The prosecutor therefore did not 27 misstate the law by using everyday examples to demonstrate that decisions may be made in a brief 1 Moreover, even if the prosecutor’s analogies had been improper—which they were not— 2 Petitioner was not prejudiced. The jury heard evidence that, before shooting Moises Sanchez (the 3 driver of the car containing Carlos Robles), Petitioner was passed by a car; the car pulled over to 4 let out another passenger; the car pulled into a driveway to make a U-turn; and the car backed up 5 as part of that U-turn. See Rep.’s Tr. at 1291:28-1293:13. Petitioner then shot Moises Sanchez 6 twice. See id. Moises Sanchez then attempted to get away but lost control of the vehicle; he 7 stopped the car and changed gear from reverse to drive; Carlos Robles got out of the car and asked 8 Petitioner not to shoot; and Petitioner shot Carlos Robles between five and seven times. See id. at 9 1293:19-1297:18. Similarly, the jury heard evidence that, before shooting Ramon Herrera, 10 Petitioner obtained a gun, traveled from San Jose to Salinas by bus, he entered a cab and traveled 11 for a further ten minutes to reach Ramon Herrera, and then shot Ramon Herrera nine times with a 12 gun that required nine separate pulls of the trigger. See Rep.’s Tr. at 1861:7-10, 1862:10-17, 13 1863:1-11, 1865:19-28, 1867:17-20, 1868:18-23. California courts have repeatedly upheld 14 finding of premeditation on facts similar to or weaker than those presented here. See, e.g., People 15 v. Henderson, 46 Cal. App. 5th 533, 551 (2020) (defendants were armed, asked the victim where 16 he was from and whether he was a gang member, and shot him). In short, there was ample 17 evidence on which the jury could have concluded that Petitioner shot his victims after 18 premeditation and deliberation. 19 Because Petitioner’s claim of prosecutorial misconduct was procedurally defaulted, and in 20 any event is without merit, the state appellate court’s rejection of this claim was neither 21 unreasonable nor contrary to clearly established federal law. Petitioner is not entitled to relief on 22 his prosecutorial misconduct claim. 23 2. Ineffective Assistance Claim 24 Respondent argues that Claim No. 2 fails because trial counsel did not render ineffective 25 assistance. See Ans. at 18. The Court agrees that Petitioner’s ineffective assistance claim is 26 without merit. 27 To prevail on a Sixth Amendment ineffectiveness of counsel claim, Petitioner must 1 fell below an “objective standard of reasonableness” under prevailing professional norms. 2 Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Second, he must establish that he was 3 prejudiced by counsel’s deficient performance, i.e., that “there is a reasonable probability that, but 4 for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 5 694. A court need not determine whether counsel’s performance was deficient before examining 6 the prejudice suffered by the defendant as the result of the alleged deficiencies. Id. at 697. 7 A “doubly” deferential judicial review is appropriate in analyzing ineffective assistance of 8 counsel claims under § 2254. See Cullen v. Pinholster, 563 U.S. 170, 189-90 (2011); Premo v. 9 Moore, 562 U.S. 115, 122-23 (2011) (same). The general rule of Strickland, i.e., to review a 10 defense counsel’s effectiveness with great deference, gives the state courts greater leeway in 11 reasonably applying that rule, which in turn “translates to a narrower range of decisions that are 12 objectively unreasonable under AEDPA.” Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 13 2010) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). When Section 2254(d) applies, 14 “the question is not whether counsel’s actions were reasonable. The question is whether there is 15 any reasonable argument that counsel satisfied Strickland’s deferential standard.” Harrington, 16 562 U.S. at 105. Under a “doubly” deferential judicial review, the state appellate court did not 17 unreasonably apply Strickland in rejecting Petitioner’s argument. See id.; see also Pinholster, 18 563 U.S. at 189-90. As noted, supra, the state appellate court concluded that the prosecutor had 19 not engaged in misconduct by posing two examples to the jury, because those examples accurately 20 portrayed California law. Because any objection by counsel would have been meritless, counsel 21 did not give an incompetent performance in the trial court. Moreover, as explained above, there 22 was ample evidence from which the jury could have concluded that the shootings followed 23 premeditation and deliberation by Petitioner. Thus, even if the failure to object had been 24 incompetent – which it was not – Petitioner was not prejudiced by counsel’s decision. 25 For these reasons, the state appellate court’s rejection of this claim was not unreasonable. 26 See Siripongs v. Calderon, 133 F.3d 732, 737 (9th Cir. 1998). Accordingly, Petitioner is not 27 entitled to relief on his ineffective assistance claim. 1 IV. CONCLUSION 2 After a careful review of the record and pertinent law, the Court concludes that the Petition 3 for a Writ of Habeas Corpus must be denied. 4 Further, a Certificate of Appealability is denied. See Rule 11(a) of the Rules Governing 5 Section 2254 Cases. Petitioner has not made “a substantial showing of the denial of a 6 || constitutional right.” 28 U.S.C. § 2253(c)(2). Nor has Petitioner demonstrated that “reasonable 7 || jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” 8 Slack v. McDaniel, 529 U.S. 473, 484 (2000). Petitioner may not appeal the denial of a Certificate 9 of Appealability in this Court but may seek a certificate from the Court of Appeals under Rule 22 10 || of the Federal Rules of Appellate Procedure. See Rule 11(a) of the Rules Governing Section 2254 11 Cases. 12 In accordance with Habeas Rule 2(a) and Rule 25(d){1) of the Federal Rules of Civil 5 13 || Procedure, the Clerk of the Court is directed to substitute Warden Patrick Covello as respondent S 14 || because he is Petitioner’s current custodian. 3 15 The Clerk shall terminate any pending motions, enter judgment in favor of Respondent, a 16 and close the file. IT IS SO ORDERED. || Datea: February 9, 2024 . 19 JON S. TIGA 20 nited States District Judge 21 22 23 24 25 26 27 28