1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 DAVID GUERRERO, ) Case No. CV 18-9411-JGB (JPR) 11 ) Petitioner, ) ORDER ACCEPTING FINDINGS AND 12 ) RECOMMENDATIONS OF U.S. v. ) MAGISTRATE JUDGE 13 ) THERESA CISNEROS, Acting ) 14 Warden,1 ) ) 15 Respondent. ) ) 16 17 The Court has reviewed the Petition, records on file, and 18 Report and Recommendation of U.S. Magistrate Judge, which 19 recommends that judgment be entered denying the Petition and 20 Petitioner’s motion to expand the record and dismissing this 21 action with prejudice. See 28 U.S.C. § 636(b)(1). On March 23, 22 2021, almost seven months after the R. & R. was issued, 23 Petitioner retained counsel and on April 23 filed objections to 24 1 Petitioner is incarcerated at the California Substance Abuse 25 Treatment Facility, whose acting warden is Theresa Cisneros. See 26 Cal. Dep’t of Corr. & Rehab. Inmate Locator, https:// inmatelocator.cdcr.ca.gov (search by name) (last visited May 28, 27 2021). Cisneros is therefore substituted in as the proper Respondent. See Fed. R. Civ. P. 25(d); see also R. 2(a), Rs. 28 Governing § 2254 Cases in U.S. Dist. Cts. 1 1 the R. & R. through him.2 Respondent did not respond. 2 I. Motion to Expand the Record 3 Petitioner appears to argue that the Court should construe 4 the proposed new exhibits as modifying the Petition’s existing 5 ineffective-assistance claims or raising new ineffective- 6 assistance claims and grant him leave to amend the Petition to 7 include them. (See Objs. at 4-6.) But even if the Court were to 8 construe the proposed exhibits as timely modifying the Petition’s 9 arguments, it still wouldn’t be able to consider the exhibits 10 under Cullen v. Pinholster, 563 U.S. 170, 181-82 (2011), because 11 they were never presented to the state court. Further, if the 12 new evidence placed the Petition’s ineffective-assistance claim 13 “in a significantly different and stronger evidentiary posture 14 than it was when the state courts considered it,” that would 15 render it unexhausted. Aiken v. Spalding, 841 F.2d 881, 883 (9th 16 Cir. 1988) (per curiam) (as amended) (citation omitted); see 17 Gonzalez v. Wong, 667 F.3d 965, 980 (9th Cir. 2011) (holding that 18 when federal petition included new evidence that wasn’t presented 19 to state court, making claim “colorable or potentially 20 2 On December 8, 2020, Petitioner moved to stay the case under 21 Rhines v. Weber, 544 U.S. 269 (2005), so that he could exhaust a 22 claim that he should be resentenced under Senate Bill 1437. His stay request, which isn’t addressed in his counseled objections, is 23 denied because any claim that the state court improperly denied resentencing under SB 1437 would not be cognizable on federal 24 habeas review. See, e.g., Rodriguez v. Corvello, No. CV 20-01832- PA (AS), 2021 WL 1603244, at *2 n.7 (C.D. Cal. Mar. 25, 2021), 25 accepted by 2021 WL 1600301 (C.D. Cal. Apr. 22, 2021); Cole v. 26 Sullivan, 480 F. Supp. 3d 1089, 1097 (C.D. Cal. 2020). Further, any ruling on such a resentencing petition would likely constitute 27 a “new judgment,” triggering an entirely separate limitation period. See Young v. Cueva, No. CV 20-8304-CJC(E), 2020 WL 28 8455474, at *2 (C.D. Cal. Oct. 27, 2020). 2 1 meritorious,” “appropriate course” was for petitioner to exhaust 2 newly supported claim in state court). 3 Moreover, as the Magistrate Judge pointed out, the proposed 4 exhibits largely pertain to ineffective-assistance claims 5 Petitioner didn’t raise in the Petition (see R. & R. at 12 n.5), 6 and it’s unlikely that any new ineffective-assistance claims, 7 which appear to fault counsel for additional miscues not raised 8 in the Petition, would relate back. See Schneider v. McDaniel, 9 674 F.3d 1144, 1152 (9th Cir. 2012) (finding that amended 10 petition asserting ineffective assistance based on counsel’s 11 failure to develop intoxication defense did not relate back to 12 original petition’s claim that counsel failed to have petitioner 13 evaluated by psychiatrist). And any new claims would also be 14 unexhausted, as the Magistrate Judge explained. (See R. & R. at 15 12 n.5.) 16 Petitioner argues that the Court should consider his 17 unexhausted ineffective-assistance claims because he has shown 18 “cause and prejudice” for any procedural default and is “actually 19 innocent.”3 (Objs. at 6-7.) He confuses exhaustion with 20 21 3 A petitioner asserting his actual innocence must show that 22 “it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence” presented in his 23 habeas petition. Schlup v. Delo, 513 U.S. 298, 327 (1995). But Petitioner’s actual-innocence argument doesn’t appear to be based 24 on any new evidence but rather on his contention that he “merely . . . passed” one of his codefendants a gun “without any knowledge 25 of what [he] intended to do with it” and was inside his house at 26 the time of the shooting. (Objs. at 13; see id. at 11 (citing Lodged Doc. 13, Augmented Clerk’s Tr. at 3-4).) But as the 27 Magistrate Judge observed, although Petitioner’s girlfriend initially told detectives he didn’t leave the house after giving 28 his codefendant a gun (see Lodged Doc. 13, Augmented Clerk’s Tr. at 3 1 procedural default. Although the Supreme Court has recognized 2 that a petitioner’s actual innocence may “overcome various 3 procedural defaults,” McQuiggin v. Perkins, 569 U.S. 383, 392-93 4 (2013) (listing such procedural bars), the failure to comply with 5 28 U.S.C. § 2254(b)(1)’s exhaustion requirement is not among 6 them. See, e.g., Sermeno v. Spearman, No. 2:14-cv-2729 DAD P., 7 2015 WL 4910500, at *3 n.2 (E.D. Cal. Aug. 17, 2015), modified on 8 reconsideration by 2016 WL 6891744, at *3 (E.D. Cal. Nov. 23, 9 2016) (noting that argument similar to Petitioner’s impermissibly 10 “combines two separate doctrines” of habeas law). Indeed, a 11 federal habeas court can consider an unexhausted claim only if it 12 is not even “colorable” and must therefore be denied. Cassett v. 13 Stewart, 406 F.3d 614, 621 n.5, 623-24 (9th Cir. 2005) (noting 14 that “exhaustion requirement is distinct from the procedural 15 default rules”). 16 II. Gang Evidence 17 Petitioner argues that the Magistrate Judge erred in finding 18 that the court of appeal’s rejection of his claim that the trial 19 court improperly admitted “cumulative, inflammatory, and 20 irrelevant gang evidence” was not objectively unreasonable. 21 3-4), she subsequently acknowledged that he did (see Lodged Doc. 22 11, Clerk’s Tr. at 107). All her varying statements were presented 23 to the jury. (See Lodged Doc. 14, 7 Rep.’s Tr. at 1864-72, 1899- 903.) He also maintains that the evidence reflected that it was 24 “more likely than not” that the gun used to shoot the victim belonged to Danny Guerrero, another gang member. (Objs. at 13.) 25 But the evidence of that was also before the jury (see Lodged Doc. 26 5 at 2-6), which nonetheless convicted Petitioner. Thus, his actual-innocence claim is in any event woefully inadequate to 27 excuse any procedural failings. 28 4 1 (Objs. at 9; see id. at 8-11.) Specifically, he contends that 2 the challenged gang evidence was prejudicially cumulative of 3 other prosecution evidence.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 DAVID GUERRERO, ) Case No. CV 18-9411-JGB (JPR) 11 ) Petitioner, ) ORDER ACCEPTING FINDINGS AND 12 ) RECOMMENDATIONS OF U.S. v. ) MAGISTRATE JUDGE 13 ) THERESA CISNEROS, Acting ) 14 Warden,1 ) ) 15 Respondent. ) ) 16 17 The Court has reviewed the Petition, records on file, and 18 Report and Recommendation of U.S. Magistrate Judge, which 19 recommends that judgment be entered denying the Petition and 20 Petitioner’s motion to expand the record and dismissing this 21 action with prejudice. See 28 U.S.C. § 636(b)(1). On March 23, 22 2021, almost seven months after the R. & R. was issued, 23 Petitioner retained counsel and on April 23 filed objections to 24 1 Petitioner is incarcerated at the California Substance Abuse 25 Treatment Facility, whose acting warden is Theresa Cisneros. See 26 Cal. Dep’t of Corr. & Rehab. Inmate Locator, https:// inmatelocator.cdcr.ca.gov (search by name) (last visited May 28, 27 2021). Cisneros is therefore substituted in as the proper Respondent. See Fed. R. Civ. P. 25(d); see also R. 2(a), Rs. 28 Governing § 2254 Cases in U.S. Dist. Cts. 1 1 the R. & R. through him.2 Respondent did not respond. 2 I. Motion to Expand the Record 3 Petitioner appears to argue that the Court should construe 4 the proposed new exhibits as modifying the Petition’s existing 5 ineffective-assistance claims or raising new ineffective- 6 assistance claims and grant him leave to amend the Petition to 7 include them. (See Objs. at 4-6.) But even if the Court were to 8 construe the proposed exhibits as timely modifying the Petition’s 9 arguments, it still wouldn’t be able to consider the exhibits 10 under Cullen v. Pinholster, 563 U.S. 170, 181-82 (2011), because 11 they were never presented to the state court. Further, if the 12 new evidence placed the Petition’s ineffective-assistance claim 13 “in a significantly different and stronger evidentiary posture 14 than it was when the state courts considered it,” that would 15 render it unexhausted. Aiken v. Spalding, 841 F.2d 881, 883 (9th 16 Cir. 1988) (per curiam) (as amended) (citation omitted); see 17 Gonzalez v. Wong, 667 F.3d 965, 980 (9th Cir. 2011) (holding that 18 when federal petition included new evidence that wasn’t presented 19 to state court, making claim “colorable or potentially 20 2 On December 8, 2020, Petitioner moved to stay the case under 21 Rhines v. Weber, 544 U.S. 269 (2005), so that he could exhaust a 22 claim that he should be resentenced under Senate Bill 1437. His stay request, which isn’t addressed in his counseled objections, is 23 denied because any claim that the state court improperly denied resentencing under SB 1437 would not be cognizable on federal 24 habeas review. See, e.g., Rodriguez v. Corvello, No. CV 20-01832- PA (AS), 2021 WL 1603244, at *2 n.7 (C.D. Cal. Mar. 25, 2021), 25 accepted by 2021 WL 1600301 (C.D. Cal. Apr. 22, 2021); Cole v. 26 Sullivan, 480 F. Supp. 3d 1089, 1097 (C.D. Cal. 2020). Further, any ruling on such a resentencing petition would likely constitute 27 a “new judgment,” triggering an entirely separate limitation period. See Young v. Cueva, No. CV 20-8304-CJC(E), 2020 WL 28 8455474, at *2 (C.D. Cal. Oct. 27, 2020). 2 1 meritorious,” “appropriate course” was for petitioner to exhaust 2 newly supported claim in state court). 3 Moreover, as the Magistrate Judge pointed out, the proposed 4 exhibits largely pertain to ineffective-assistance claims 5 Petitioner didn’t raise in the Petition (see R. & R. at 12 n.5), 6 and it’s unlikely that any new ineffective-assistance claims, 7 which appear to fault counsel for additional miscues not raised 8 in the Petition, would relate back. See Schneider v. McDaniel, 9 674 F.3d 1144, 1152 (9th Cir. 2012) (finding that amended 10 petition asserting ineffective assistance based on counsel’s 11 failure to develop intoxication defense did not relate back to 12 original petition’s claim that counsel failed to have petitioner 13 evaluated by psychiatrist). And any new claims would also be 14 unexhausted, as the Magistrate Judge explained. (See R. & R. at 15 12 n.5.) 16 Petitioner argues that the Court should consider his 17 unexhausted ineffective-assistance claims because he has shown 18 “cause and prejudice” for any procedural default and is “actually 19 innocent.”3 (Objs. at 6-7.) He confuses exhaustion with 20 21 3 A petitioner asserting his actual innocence must show that 22 “it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence” presented in his 23 habeas petition. Schlup v. Delo, 513 U.S. 298, 327 (1995). But Petitioner’s actual-innocence argument doesn’t appear to be based 24 on any new evidence but rather on his contention that he “merely . . . passed” one of his codefendants a gun “without any knowledge 25 of what [he] intended to do with it” and was inside his house at 26 the time of the shooting. (Objs. at 13; see id. at 11 (citing Lodged Doc. 13, Augmented Clerk’s Tr. at 3-4).) But as the 27 Magistrate Judge observed, although Petitioner’s girlfriend initially told detectives he didn’t leave the house after giving 28 his codefendant a gun (see Lodged Doc. 13, Augmented Clerk’s Tr. at 3 1 procedural default. Although the Supreme Court has recognized 2 that a petitioner’s actual innocence may “overcome various 3 procedural defaults,” McQuiggin v. Perkins, 569 U.S. 383, 392-93 4 (2013) (listing such procedural bars), the failure to comply with 5 28 U.S.C. § 2254(b)(1)’s exhaustion requirement is not among 6 them. See, e.g., Sermeno v. Spearman, No. 2:14-cv-2729 DAD P., 7 2015 WL 4910500, at *3 n.2 (E.D. Cal. Aug. 17, 2015), modified on 8 reconsideration by 2016 WL 6891744, at *3 (E.D. Cal. Nov. 23, 9 2016) (noting that argument similar to Petitioner’s impermissibly 10 “combines two separate doctrines” of habeas law). Indeed, a 11 federal habeas court can consider an unexhausted claim only if it 12 is not even “colorable” and must therefore be denied. Cassett v. 13 Stewart, 406 F.3d 614, 621 n.5, 623-24 (9th Cir. 2005) (noting 14 that “exhaustion requirement is distinct from the procedural 15 default rules”). 16 II. Gang Evidence 17 Petitioner argues that the Magistrate Judge erred in finding 18 that the court of appeal’s rejection of his claim that the trial 19 court improperly admitted “cumulative, inflammatory, and 20 irrelevant gang evidence” was not objectively unreasonable. 21 3-4), she subsequently acknowledged that he did (see Lodged Doc. 22 11, Clerk’s Tr. at 107). All her varying statements were presented 23 to the jury. (See Lodged Doc. 14, 7 Rep.’s Tr. at 1864-72, 1899- 903.) He also maintains that the evidence reflected that it was 24 “more likely than not” that the gun used to shoot the victim belonged to Danny Guerrero, another gang member. (Objs. at 13.) 25 But the evidence of that was also before the jury (see Lodged Doc. 26 5 at 2-6), which nonetheless convicted Petitioner. Thus, his actual-innocence claim is in any event woefully inadequate to 27 excuse any procedural failings. 28 4 1 (Objs. at 9; see id. at 8-11.) Specifically, he contends that 2 the challenged gang evidence was prejudicially cumulative of 3 other prosecution evidence. (See id. at 9-11.) But as the 4 Magistrate Judge explained, evidence that Petitioner and his 5 codefendants and the victim were members of rival gangs that were 6 at war at the time of the shooting and that Petitioner was 7 present during an earlier shooting involving the gangs was 8 directly relevant to his motive and to showing that the murder 9 was committed for his gang’s benefit, which the prosecution had 10 to establish to prove the gang enhancement. (R. & R. at 20-22.) 11 Without that evidence, the jury would have been left without much 12 context for why he and his codefendants murdered the victim. 13 Further, for the reasons detailed in the R. & R., any undue 14 prejudice was mitigated by the prosecutor’s arguments and the 15 court’s instructions (see R. & R. at 22-23), and any error was 16 harmless (see id. at 25-26). 17 Petitioner also contends that in finding that testimony that 18 police recovered eight guns and ammunition from Danny Guerrero’s 19 apartment was “relevant to . . . dispelling the impression that 20 because one of the murder weapons was found in [Guerrero’s] 21 possession, he must have been involved in the crime” (R. & R. at 22 24-25 (quoting court of appeal)), the Magistrate Judge 23 effectively “approv[ed] of the state court prohibiting Petitioner 24 from presenting a defense at his trial.” (Objs. at 10.) The 25 Magistrate Judge did no such thing, and Petitioner does not 26 explain himself. Nothing prevented him from advancing a theory, 27 as he does in his Objections, that Danny Guerrero was the actual 28 shooter. (See id. at 13.) But as the Magistrate Judge 5 1 recognized, the prosecution was entitled to introduce evidence 2 undermining that inference by showing that he was simply the 3 gang’s armorer. (See R. & R. at 24-25.) 4 III. Jury Instruction 5 Petitioner argues that the Magistrate Judge erred in finding 6 that the state court reasonably denied his instructional-error 7 claim; according to Petitioner, any error was not harmless. (See 8 Objs. at 13.) But the Magistrate Judge didn’t simply find that 9 any error was harmless because Petitioner’s conviction was 10 subsequently reduced from first- to second-degree murder. (See 11 id.) Even though that was a proper consideration, see Torres v. 12 Peery, No. 2:16–cv–0385 MCE DB P, 2018 WL 3197903, at *11 (E.D. 13 Cal. June 26, 2018), she also properly found that “viewed in the 14 context of the overall charge, . . . it was not reasonably likely 15 the jury convicted Petitioner without deciding that he bore the 16 requisite state of mind to commit murder.” (R. & R. at 31-32.) 17 IV. Ineffective Assistance of Counsel 18 Petitioner reiterates the Petition’s arguments that trial 19 counsel was ineffective “for failing to prepare for trial.” 20 (Objs. at 13; see id. at 17-18.) For the reasons discussed in 21 the R. & R., he has not established that counsel performed 22 deficiently or that any deficient performance was prejudicial. 23 (See R. & R. at 39-49.) For instance, he claims that counsel 24 failed to “produce significant, exculpatory witness testimony 25 including alibi testimony.” (Objs. at 18.) But as the 26 Magistrate Judge observed, the five witnesses that trial counsel 27 allegedly failed to call because of the limited time she had to 28 prepare for trial (nine months) all testified at his first trial, 6 1 in which he was convicted. (See R. & R. at 44.) Counsel also 2 explained that she had made a tactical decision not to call 3 Petitioner’s alibi witness because he wasn’t credible (see id.); 4 and another witness he claims she should have called testified at 5 his first trial that he, the witness, was not even present at the 6 shooting, undermining his earlier statement to police that 7 Petitioner wasn’t involved (see id. at 45-46). Finally, as the 8 Magistrate Judge found, although Petitioner faults counsel for 9 failing to adequately investigate his case, he doesn’t identify 10 any exculpatory information additional investigation would have 11 produced. (See id. at 46-49.) 12 V. Sentencing 13 Petitioner argues that the Magistrate Judge incorrectly 14 found that he was not entitled to habeas relief on his sentencing 15 claim, pointing out that had trial counsel appealed from his 16 September 19, 2017 resentencing, as Petitioner claims without 17 evidence he asked him to do, he would have been able to seek 18 resentencing under Senate Bill 620. (Objs. at 18.) But he does 19 not challenge the Magistrate Judge’s finding that his sentencing 20 claim “involves only state sentencing law and thus does not give 21 rise to a federal question” (R. & R. at 49), which is reason 22 alone to deny it, and he never raised the appeal issue as part of 23 his ineffective-assistance claim. 24 Having reviewed de novo those portions of the R. & R. to 25 which Petitioner objects, the Court agrees with and accepts the 26 findings and recommendations of the Magistrate Judge. IT 27 THEREFORE IS ORDERED that judgment be entered denying the 28 Petition and Petitioner’s motions to expand the record and for a 7 stay and dismissing this action with prejudice. 2 21 DATED: June 11, 2021 ——ies Ly JESUS G. BERNAL 4 Ugsfy DISTRICT JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28