(HC) Arguello v. Muniz

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ERIC ARGUELLO, No. 1:18-cv-00383-DAD-HBK (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DENYING 14 W. L. MUNIZ, PETITION FOR HABEAS CORPUS 15 Respondent. (Doc. Nos. 40, 22-1) 16

17 18 Petitioner Eric Arguello is a state prisoner proceeding with counsel and in forma pauperis 19 with a petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. This matter was 20 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 21 302. 22 On June 15, 2020, the then-assigned magistrate judge issued findings and 23 recommendations recommending that petitioner’s amended petition for federal habeas relief 24 (Doc. No. 22-1) be denied on the merits. (Doc. No. 40.) Specifically, the magistrate judge found 25 that: (1) the state appellate court’s rejection of petitioner’s claim on direct appeal that there was 26 insufficient evidence to support his conviction of attempted murder of a peace officer was not 27 “objectively unreasonable”; (2) the appellate court’s harmless error determinations regarding any 28 error in the jury instructions given at petitioner’s trial on self-defense and withdrawal from a 1 criminal enterprise were reasonable; (3) petitioner’s confrontation clause claim fails because the 2 jury heard ample non-hearsay evidence supporting its conclusion that petitioner was involved in a 3 gang and thus, the trial court’s admission of a gang expert’s testimony—whether alleged to be a 4 violation of Crawford v. Washington, 541 U.S. 36 (2004), which the magistrate judge rejected, or 5 deemed inadmissible hearsay under People v. Sanchez, 63 Cal. 4th 665 (2016), which the 6 appellate court found—did not have a substantial or injurious effect on the verdict at petitioner’s 7 trial; and (4) the appellate court’s conclusion that the harmless errors did not rise to the level of 8 reversible and prejudicial error when considered cumulatively was not unreasonable. (See id. at 9 11–21.) Those pending findings and recommendations were served on all parties and contained 10 notice that any objections thereto were to be filed within thirty (30) days from the date of service. 11 (Id. at 22.) On July 14, 2020, petitioner timely filed objections to the pending findings and 12 recommendations. (Doc. No. 41.) To date, respondent has not filed any objections to the pending 13 findings and recommendations, and the time in which to do so has passed. 14 In his objections, petitioner primarily reiterates arguments that had already been addressed 15 in the pending findings and recommendations. (Doc. No. 41.) The court will address petitioner’s 16 objections with regard to each of his claims below. 17 First, petitioner asserts that the magistrate judge erred in concluding that there was 18 sufficient evidence to support the conviction for attempted murder of a peace officer because, 19 according to petitioner, “[t]here simply was insufficient evidence for the state court to infer that 20 [he] shared the specific intent to kill [the officer] based on his gang membership and association 21 with the actual shooter or shooters.” (Id. at 7.) Petitioner argues that the appellate court’s 22 determination was unreasonable because “[s]imply asserting that being in the presence of other 23 gang members transposes the mental state of those other gang members to the non-shooting gang 24 member is unreasonable.” (Id. at 5.) The undersigned is not persuaded by petitioner’s argument 25 because, as noted in the pending findings and recommendations, petitioner’s presence at the scene 26 of the shooting with fellow gang members was not the only evidence supporting the attempted 27 murder conviction. (Doc. No. 40 at 12–13.) The jury heard other circumstantial evidence 28 supporting petitioner’s conviction, including that petitioner witnessed his co-defendants shoot the 1 first two victims, he knew they possessed guns when they entered his vehicle, he served as the get 2 away driver from the first shootings to help them flee police officers, he continued driving while 3 his co-defendant shot at the officer, he drove at high speeds and ran a stoplight, he pulled over to 4 let his co-defendants out of the truck in an effort to elude pursuing police officers, and he tried to 5 escape himself by driving away. (Id.) In addition, as the magistrate judge correctly explained, 6 petitioner must overcome a doubly deferential standard for federal habeas relief on his 7 insufficiency of the evidence claim. This court is bound by the holding in Coleman v. Johnson, 8 566 U.S. 650 (2012). 9 [O]n habeas review, “a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply 10 because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was 11 ‘objectively unreasonable.’” 12 Id. at 651. The magistrate judge correctly concluded that petitioner does not meet this high bar to 13 be entitled to federal habeas relief as to this claim. The undersigned agrees that “[i]n viewing the 14 evidence in the light most favorable to the prosecution, [] petitioner has failed to show that no 15 rational trier of fact could have found proof supporting [his] conviction as an aider and abettor of 16 the attempted murder of the officer, or that the jury’s verdict was ‘so insupportable as to fall 17 below the threshold of bare rationality.’” (Doc. No. 40 at 13) (quoting Coleman, 566 U.S. at 656) 18 (internal citation omitted). 19 Second, petitioner objects to the magistrate judge’s conclusion that he was not prejudiced 20 by an allegedly erroneous self-defense jury instruction given at his trial because the jury found 21 petitioner guilty of premeditation and deliberation, thus indicating that the jury had also rejected 22 petitioner’s self-defense theory. (Doc. No. 41 at 7.) Petitioner argues that, to the contrary, the 23 jury’s rejection of his claim of self-defense underlies the assertion of prejudice stemming from 24 the erroneous self-defense instruction because it shows that the jury misused the instruction. (Id.) 25 However, petitioner cite no legal authority in support of this stretched deduction. Whereas the 26 appellate court cited case law to support its conclusion that the record did not indicate that giving 27 the instruction resulted in any prejudice, particularly because none of the questions asked by the 28 jury during deliberation pertained to the topic of self-defense, and the jury’s finding of 1 premeditation and deliberation indicated their complete rejection of petitioner’s self-defense 2 arguments. (Doc. No. 22 at 77–78.)1 In addition, petitioner’s objections do not meaningfully 3 address the standard that federal courts apply in reviewing a state court’s determination that a 4 constitutional violation at trial was a harmless error. As correctly noted in the pending finding 5 and recommendations, habeas relief is not available “unless the harmlessness determination itself 6 was unreasonable,” and “[t]o obtain relief, petitioner must show that the state court’s harmless 7 error determination ‘was so lacking in justification that there was an error well understood and 8 comprehended in existing law beyond any possibility for fairminded disagreement.’” (Doc. No. 9 40 at 14) (internal citation omitted). A constitutional violation is a harmless error unless the error 10 had “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. 11 Abrahamson, 507 U.S. 619, 637–38 (1993). Here, as the magistrate judge noted, the state 12 appellate court declined to analyze whether the jury instruction itself was a misstatement of the 13 law, as petitioner had argued, and instead analyzed whether giving the instruction—flawed or 14 not—constituted harmless error. (Doc. No. 40 at 14.) The state appellate court concluded that 15 petitioner had not suffered prejudice from the giving of the instruction, explaining that the 16 prosecutor did not misstate the law when referencing the instruction just once in her closing 17 argument, and that the prosecutor indeed had “repeatedly urged the jury to acquit the defendants 18 if it believed that they acted in self-defense.” (Id. at 15.) The undersigned agrees with the 19 magistrate judge’s finding that there was no indication that the self-defense instruction 20 “influenced the jury’s verdict in an unconstitutional manner.” (Id.) 21 1 Petitioner also objects to the magistrate judge’s noting that he “presented no evidence of 22 prejudice resulting from the instruction” (Doc. No. 40 at 15), because according to petitioner, it 23 would be impossible for him to present any new evidence in this federal court. (Doc. No. 41 at 80.) But neither of the decisions cited by petitioner—Dickens v. Ryan 740 F.3d 1302 (9th Cir. 24 2014) and Cullen v. Pinholster, 563 U.S. 170 (2011)—involve a petitioner presenting evidence to show that prejudice resulted from an error that the state court had determined to be harmless. 25 Moreover, despite his objection that it also would have been impossible for him to present evidence of prejudice to the state court (Doc. No. 41 at 8), petitioner stated in his petition that he 26 had in fact presented “extensive evidence that he was prejudiced by the instructional error.” 27 (Doc. No. 22 at 38.) Given this inconsistency, petitioner’s objection regarding his purported inability to make a showing of prejudice does little to cast doubt on the analysis set forth in the 28 pending findings and recommendations. 1 Third and relatedly, petitioner objects to the magistrate judge’s finding that he was not 2 prejudiced by the trial court instructing the jury regarding withdrawal from a criminal enterprise 3 as a defense to aiding and abetting, even though the prosecution conceded on appeal that the 4 evidence did not warrant such an instruction and the appellate court agreed that giving the 5 instruction was an error. (Doc. No. 41 at 8–9.) But here too, petitioner has not shown that the 6 state appellate court’s determination that this error was harmless was itself unreasonable. Rather, 7 petitioner merely reasserts his argument that it was unreasonable for the state appellate court to 8 apply the state court harmless error standard articulated in People v. Watson, 46 Cal. 2d 818 9 (1956), rather than the standard articulated in Chapman v. California, 386 U.S. 18 (1967), which 10 applies to claims of federal error. (Doc. No. 41 at 9.) But petitioner stops short of arguing that 11 application of Chapman by the state appellate court would have yielded a different result. 12 Instead, petitioner states in conclusory fashion that “it is clear that the instructional error had a 13 substantial and injurious effect on the jury’s verdict” (id.), and he refers to the arguments he made 14 in his petition—arguments that have already been properly addressed in the pending findings and 15 recommendations. 16 Fourth, petitioner objects to the magistrate judge’s finding that the erroneous admission of 17 the gang expert’s testimony does not justify federal habeas relief because the appellate court 18 correctly found that the error was harmless and did not have a substantial or injurious effect on 19 the verdict. (Doc. No. 41 at 9–11.) Petitioner argues that the magistrate judge recited the relevant 20 factors but did not apply them. (Id. at 10.) In particular, petitioner contends that the magistrate 21 judge did not explicitly address the importance of the gang expert’s trial testimony and did not 22 compare the weight of that inadmissible hearsay testimony with the “meager evidence” of 23 petitioner wearing red clothing, driving a red truck, and affiliating with his co-defendants. (Id.) 24 However, the pending findings and recommendations do address the importance of the gang 25 expert’s testimony relative to the other evidence supporting they jury’s finding that petitioner was 26 involved in a gang; the gang expert’s testimony was less important relative to the “ample non- 27 hearsay evidence,” including his gang tattoos and his co-defendants’ admitted gang membership 28 and testimony that petitioner was in the gang as well. (Doc. No. 40 at 20.) Petitioner also argues 1 that the pending findings and recommendations merely state that the gang expert was cross- 2 examined, but they do not address the extent of cross-examination. (Doc. No. 41 at 11.) The 3 undersigned has reviewed the reporter’s transcript containing the cross-examination of the gang 4 expert by petitioner’s defense counsel, which was extensive and thorough. Moreover, the 5 undersigned notes that in his petition, petitioner summarizes the cross-examination of the gang 6 expert, including examination on the gang expert’s statements that were later determined to be 7 inadmissible hearsay by the appellate court. (Doc. No. 22 at 46.) Similarly, petitioner argues that 8 the pending findings and recommendations do not address the strength of the prosecution’s case 9 against petitioner, and that the prosecution’s job was made easier by the gang expert’s 10 testimony—namely, the inadmissible gang evidence allowed the jury to infer petitioner’s criminal 11 intent in a way that it would not have been able to had the evidence been properly excluded. 12 (Doc. No. 41 at 11.) Nevertheless, here too, petitioner’s objections fail to meaningfully cast 13 doubt on the state appellate court’s determination that admission of the gang expert’s hearsay 14 statements was harmless error in light of the overwhelming properly admitted evidence. 15 Accordingly, the undersigned agrees with the magistrate judge’s finding that petitioner has not 16 shown that the error in admitting the gang expert’s hearsay statements had a substantial or 17 injurious effect on the jury’s verdict in his case. 18 Fifth, and finally, petitioner objects to the magistrate judge’s conclusion that it was not 19 unreasonable for the appellate court to find that petitioner did not suffer from cumulative 20 prejudice. (Doc. No. 41 at 12.) Petitioner’s objection in this regard is derivative of his objections 21 to the pending findings and recommendations on each of his claims of prejudicial error. (Id.) As 22 discussed above, it was not unreasonable for the appellate court to determine that those errors 23 were harmless. Thus, the undersigned agrees with the magistrate judge’s findings that petitioner 24 has failed to support his claim for habeas relief based on cumulative errors. 25 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a 26 de novo review of this case. Having carefully reviewed the entire file, including petitioner’s 27 objections, the court concludes that the findings and recommendations are supported by the 28 record and proper analysis. 1 Having found that petitioner is not entitled to habeas relief, the court now turns to whether 2 || acertificate of appealability should issue. A prisoner seeking a writ of habeas corpus has no 3 | absolute entitlement to appeal a district court’s denial of his petition, as an appeal is only allowed 4 | under certain circumstances. 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-336 5 | (2003). In addition, Rule 11 of the Rules Governing Section 2254 Cases requires that a district 6 | court issue or deny a certificate of appealability when entering a final order adverse to a 7 | petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th 8 | Cir. 1997). If, as here, a court denies a petition for a writ of habeas corpus, the court may only 9 | issue a certificate of appealability when “the applicant has made a substantial showing of the 10 | denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make a substantial showing, the 11 | petitioner must establish that “reasonable jurists could debate whether (or, for that matter, agree 12 || that) the petition should have been resolved in a different manner or that the issues presented 13 | were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 14 | 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). Petitioner has not made such 15 | ashowing here. Therefore, the court declines to issue a certificate of appealability. 16 Accordingly, 17 1. The findings and recommendations issued on June 15, 2020 (Doc. No. 40) are 18 adopted in full; 19 2. This petition for writ of habeas corpus (Doc. No. 22-1) is denied; 20 3. The court declines to issue a certificate of appealability; and 21 4. The Clerk of the Court is directed to close this case. 22 | IT IS SO ORDERED. me □ Dated: _ February 18, 2021 a A a anys 24 UNITED STATES DISTRICT JUDGE 25 26 27 28