Sanchez v. McDowell

• Court: District Court, S.D. California
• Decided: January 3, 2023
• Docket: 3:22-cv-00192
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ORLANDO SANCHEZ, Case No.: 22-CV-0192-GPC-KSC 12 Petitioner, 13 JUDGMENT AND ORDER v. ADOPTING MAGISTRATE 14 NEIL MCDOWELL, Warden, JUDGE’S REPORT AND 15 RECOMMENDATION IN PART Respondent. AND DENYING PETITION FOR 16 WRIT OF HABEAS CORPUS 17 [ECF Nos. 1 & 23]

18 I. INTRODUCTION 19 On February 9, 2022 Petitioner Orlando Sanchez filed a petition for Writ of Habeas 20 Corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. On June 29, 2022 Respondent Neil 21 McDowell filed an answer and opposition to the petition, ECF Nos. 14 & 15, and lodged 22 the appropriate state court records, ECF No. 17. On July 22, 2022 Sanchez filed a Traverse. 23 ECF No. 21. On October 3, 2022 Magistrate Judge Karen S. Crawford issued a Report and 24 Recommendation (“R&R”) pursuant to 28 U.S.C. § 636(b) and Civil Local Rule 72.1(d), 25 recommending that the Court deny the petition. ECF No. 23. No objections were filed. 26 27 1 After a thorough review of the issues and for the reasons set forth below, the Court 2 ADOPTS the Magistrate Judge’s R&R in part and DENIES the petition for writ of habeas 3 corpus. 4 II. PROCEDURAL BACKGROUND 5 Petitioner Orlando Sanchez seeks a writ of habeas corpus challenging his conviction 6 in the Superior Court for the County of San Diego for first degree murder with a firearm 7 enhancement and possession of a firearm by a felon, for which Sanchez received a sentence 8 of 53 years to life. See ECF No. 1. Sanchez raises five separate grounds for relief: (1) the 9 trial court failed to instruct the jury on voluntary manslaughter based on imperfect self- 10 defense; (2) the trial court failed to instruct the jury on voluntary intoxication; (3) the trial 11 court’s manslaughter instructions on self-defense, provocation, and sudden quarrel/heat of 12 passion were incomplete and misleading; (4) the three claimed instructional errors 13 amounted to cumulative error sufficient to deprive petitioner of his due process right to a 14 fair trial; and (5) the trial court violated his due process rights by imposing restitution 15 without holding an “ability-to-pay hearing or finding there was an ability to pay.” ECF 16 No. 1 at 6–10; ECF No. 1-2 at 9.1 17 A. State Court Trial Proceedings 18 The Court defers to state court findings of fact and presumes them to be correct 19 unless petitioner rebuts that presumption with clear and convincing evidence. See 28 20 U.S.C. § 2254(e)(1); Parke v. Raley, 506 U.S. 20, 35–36 (1992); Tilcock v. Budge, 538 21 F.3d 1138, 1141 (9th Cir. 2008). Sanchez makes no effort to rebut the presumption of 22 correctness. Accordingly, the Court briefly recites the facts pertinent to this Petition as set 23 forth in the reasoned opinion of the California Court of Appeal, which describes the 24 substance of the evidence introduced at trial in detail. See ECF No. 17-21 at 2–13. 25

26 1 Page numbers are based on CM/ECF pagination. 27 1 Jordy Lopez died during surgery in a San Diego hospital after being shot in the back 2 on October 15, 2016. Id. at 2, 5–6. Lopez’s friend, N.D., was with him the night of the 3 shooting. Id. at 2. N.D.’s version of events was that he and Lopez were walking to N.D.’s 4 cousin’s house in Linda Vista when two men in a small, white SUV passed by them. Id. 5 at 2–3. The SUV’s passenger was staring at them aggressively. Id. at 3. N.D. then saw 6 the SUV park across the street from N.D.’s cousin’s house, and the two passengers went 7 into the courtyard of an apartment complex. Id. at 4. The SUV passengers came outside 8 with three or four other men—some of whom were holding beer bottles—and the passenger 9 who had been staring at N.D. and Lopez began taunting N.D. and Lopez in Spanish. Id. 10 The group of men then started an unprovoked fight with N.D. and Lopez, during which 11 N.D. was knocked to the ground shortly before he heard multiple gunshots. Id. N.D. saw 12 some of the men flee from the shooting in the white SUV before he discovered Lopez lying 13 on the ground. Id. at 4–5. 14 The police arrived on the scene and interviewed a dying Lopez who told them there 15 was no reason why anybody would want to shoot him, but that he had seen “suspicious” 16 people in a car, specifically two men in a small, white SUV that had been driving slowly 17 on the street. Id. at 5. Two other percipient witnesses who lived near the scene of the 18 shooting testified they heard gunshots immediately before seeing a small, white SUV 19 (which one of the witnesses identified as a Scion XB) speed away from the scene. Id. 20 Another witness, Luis N., testified he had been Sanchez’s roommate and Sanchez 21 had at one point in the past driven a white Scion. Id. at 7–8. He testified that Sanchez 22 admitted his involvement in shooting Lopez to Luis N. sometime in November or 23 December 2016. Id. at 8. Sanchez purportedly explained the shooting to Luis N. in more 24 detail at a later time, saying two “Cholos” had been “bothering” or “bugging” Sanchez for 25 a beer; that Sanchez had seen “something chrome” flashing under one of the “Cholo’s” 26 shirts; and that Sanchez then left the street, went to the apartment complex where he lived 27 1 at the time, retrieved a gun from his room, came back to the street, and shot one of the men. 2 Id. at 8–9. Sanchez told Luis N. he had been with his friend Alfredo, who also went by the 3 name of “Billy,” on the night of the shooting. Id. at 9. 4 San Diego Sheriff Department detective Manuel Heredia testified about an 5 undercover operation in San Diego jail during which deputies solicited information from 6 Alfredo. Id. at 11. Alfredo told deputies he had been with Sanchez on the night of the 7 shooting, both of them were drunk and high, and there had been a “brawl” during which 8 Sanchez had shot somebody. Id. at 11–12. Alfredo’s wife, Patricia C., also testified at trial 9 about Alfredo’s version of events from the night of the shooting. See id. at 13. According 10 to Patricia C., Alfredo told her that he and Sanchez had been drinking the night of the 11 shooting; some guys “wanted to start a fight” with them while Sanchez was asleep in the 12 car; and Sanchez responded by going back to his apartment, getting a gun, and shooting 13 one of the men. Id. To her recollection, Alfredo never mentioned anything about one of 14 the men potentially being armed prior to the shooting. Id. After hearing this and other 15 evidence not germane to this Petition, the jury convicted Sanchez of first-degree murder 16 with a firearm enhancement, and the Superior Court consequently sentenced Sanchez to 17 “three years plus 50 years to life in prison.” Id. at 2. 18 B. Post-Trial Procedures 19 Sanchez appealed his conviction directly to the California Court of Appeal. ECF 20 Nos. 1 at 2; 17-21. Sanchez’s direct appeal raised and exhausted the same five grounds for 21 relief he asserts in this Petition. See generally ECF No. 17-21. The Court of Appeal 22 unanimously affirmed the judgment against Sanchez. See id. at 33. Sanchez then 23 petitioned the California Supreme Court for review. ECF No. 1-2. The Supreme Court 24 rejected his Petition without comment on February 10, 2021. See ECF Nos. 1-3; 17-23. 25 Sanchez timely filed this Petition on February 9, 2022. See ECF No. 1. 26 27 1 Sanchez has also filed a Petition for a writ of habeas corpus in the California Superior 2 Court alleging ineffective assistance of counsel and insufficient evidence to support the 3 conviction against him. See ECF No. 1 at 3. These claims have not been exhausted in the 4 state court system because Sanchez did not raise them during his direct appeal. See ECF 5 17-23. Thus, Sanchez may not raise them in this Petition. See King v. Ryan, 564 F.3d 1133, 6 1138 (9th Cir. 2009). Any subsequent federal habeas petition based on his ineffective 7 assistance of counsel or sufficiency of the evidence claims will be barred unless Sanchez 8 shows either an intervening, retroactive change in the Supreme Court’s constitutional 9 doctrine, or new facts that could not have been discovered with reasonable diligence and 10 which “if proven and viewed in light of the evidence as a whole, would be sufficient to 11 establish by clear and convincing evidence that, but for constitutional error, no reasonable 12 factfinder would have found the applicant guilty of the underlying offense.” 28 U.S.C. 13 § 2244(b)(2). 14 If Sanchez had filed a so-called “mixed” petition alleging both exhausted and 15 unexhausted claims, he would have had the opportunity to request a stay and abeyance 16 pending the exhaustion of his unexhausted claims. Rhines v. Weber, 544 U.S. 269, 275– 17 76 (2005). Sanchez initially suggested he would seek a stay and abeyance. See ECF No. 18 1 at 5. He subsequently elected to exclude his unexhausted claims from this Petition 19 because they would cause “delay.” See ECF No. 4.2 Accordingly, this Court will address 20 the merits of the fully exhausted claims. 21 22 23

24 2 This Court has no obligation to advise Sanchez on the wisdom or folly of his decision to 25 gamble a procedural bar to habeas relief for his unexhausted claims against the expedience 26 of proceeding only on his exhausted claims. Cf. Pliler v. Ford, 542 U.S. 225, 233 (2004); Robbins v. Carey, 481 F.3d 1143, 1148–49 (9th Cir. 2007). 27 1 III. STANDARD OF REVIEW 2 Federal habeas relief is available to an individual “in custody pursuant to the 3 judgment of a State court only on the ground that he is in custody in violation of the 4 Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). This Court 5 may not issue a writ of habeas corpus based solely on alleged error of state law. Estelle v. 6 McGuire, 502 U.S. 62, 67 (1991). A court will only entertain a writ of habeas corpus on 7 behalf of a state court prisoner if the federal claims have been adjudicated on the merits in 8 state court. 28 U.S.C. § 2254(b)–(c). A state court adjudication may be overturned if it 9 “resulted in a decision that was contrary to, or involved an unreasonable application of, 10 clearly established Federal law, as determined by the Supreme Court of the United States.” 11 Id. § 2254(d)(1). This “standard is intentionally difficult to meet,” and it incorporates “a 12 presumption that state courts know and follow the law,” which makes federal habeas 13 review “a guard against extreme malfunctions in the state criminal justice systems, not a 14 substitute for ordinary error correction through appeal.” Woods v. Donald, 575 U.S. 312, 15 316 (2015) (citations and internal quotation marks omitted). 16 A petitioner must first identify the “clearly established” federal law at issue. 17 Marshall v. Rodgers, 569 U.S. 58, 61 (2013); Robertson v. Pichon, 849 F.3d 1173, 1182 18 (9th Cir. 2017). Only the direct holdings of the Supreme Court, not its dicta, are “clearly 19 established” for purposes of the statute. Woods, 575 U.S. at 315; Robertson, 849 F.3d at 20 1182. The holdings of circuit courts cannot constitute “clearly established” federal law if 21 the Supreme Court has not itself announced a clear rule. See Lopez v. Smith, 574 U.S. 1, 6 22 (2014); Robertson, 849 F.3d at 1182. If there is no directly controlling Supreme Court 23 precedent, habeas relief will be unavailable to the petitioner because the law is not “clearly 24 established.” Wright v. Van Patten, 552 U.S. 120, 126 (2008); Robertson, 849 F.3d at 25 1182. 26 27 1 If a petitioner can identify “clearly established” law, he or she must also demonstrate 2 the state court made “an unreasonable application” of federal doctrine, “not merely [a] 3 wrong” application, and “even clear error will not suffice.” Woods, 575 U.S. at 316 4 (citations and internal quotation marks omitted). To justify habeas relief “a state prisoner 5 must show that the state court’s ruling on the claim being presented in federal court was so 6 lacking in justification that there was an error well understood and comprehended in 7 existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 8 562 U.S. 86, 103 (2011); accord Robertson, 849 F.3d at 1182. 9 Should a petitioner cross the high hurdles of both identifying a “clearly established” 10 law and showing the state court’s ruling is sufficiently unreasonable as to constitute error 11 susceptible to habeas review, he or she must further demonstrate any error was prejudicial 12 under the standard announced by the Supreme Court in Brecht v. Abrahamson, 507 U.S. 13 619, 637–38 (1993). See Fry v. Pliler, 551 U.S. 112, 121–22 (2007); Merolillo v. Yates, 14 663 F.3d 444, 454–55 (9th Cir. 2011). Under that standard, “[h]abeas relief is warranted 15 only if the error had a ‘substantial and injurious effect or influence in determining the jury’s 16 verdict.’ ” Merolillo, 663 F.3d at 454 (citing Brecht, 507 U.S. at 637–38). The federal 17 court’s review is limited “to the record that was before the state court that adjudicated the 18 claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011). The Court will “look 19 through” any summary denials to the “last reasoned opinion” issuing from the state 20 judiciary. See Wilson v. Sellers, 138 S. Ct. 1188, 1194 (2018) (citing Ylst v. Nunnemaker, 21 501 U.S. 797 (1991)). Because the California Supreme Court denied Sanchez’s Petition 22 for review without comment, this Court will “look through” to the decision of the 23 California Court of Appeal. ECF No. 17-21. 24 25 26 27 1 IV. SANCHEZ HAS SHOWN NO DEPRIVATION OF HIS FEDERAL 2 CONSTITUTIONAL RIGHTS. 3 Sanchez raises five separate grounds for relief: (1) the trial court failed to instruct 4 the jury on voluntary manslaughter based on imperfect self-defense; (2) the trial court 5 failed to instruct the jury on voluntary intoxication; (3) the trial court’s manslaughter 6 instructions on self-defense, provocation, and sudden quarrel/heat of passion were 7 incomplete and misleading; (4) the three claimed instructional errors amounted to 8 cumulative error sufficient to deprive Petitioner of his due process right to a fair trial; and 9 (5) the trial court violated his due process rights by imposing restitution without holding 10 an “ability-to-pay hearing or finding there was an ability to pay.” ECF No. 1 at 6–10; ECF 11 No. 1-2 at 9. This Court will address each argument in turn. 12 A. The Trial Court Did Not Err When It Refused to Give An Imperfect Self- 13 Defense Instruction. 14 Sanchez alleges the trial court violated his due process rights by failing to give an 15 instruction on the lesser included offense of imperfect self-defense. ECF No. 1. Sanchez 16 acknowledges “failure to instruct on a lesser included offense is ordinarily only state law 17 error,” which places the matter beyond the scope of this Court’s review. See ECF No. 18 17-18 at 48 (citing People v. Breverman, 19 Cal. 4th 142, 149 (1998)). At the same time, 19 he identifies two putative federal claims this Court may review. Sanchez first claims the 20 failure to instruct on imperfect self-defense improperly absolved the prosecution of proving 21 “malice” beyond a reasonable doubt. See ECF 17-18 at 48–49. He also claims the failure 22 to instruct deprived him of his due process right to present a defense. Id. at 49–50. 23 The California Court of Appeal did not directly address either federal constitutional 24 issue in its opinion. See ECF No. 17-18 at 48–50; ECF No. 17-21 at 13–21. “When a state 25 court rejects a federal claim without expressly addressing the claim, a federal habeas court 26 must presume that the federal claim was adjudicated on the merits. . . .” See Johnson v. 27 1 Williams, 568 U.S. 289, 300–01 (2013). Here, the Court of Appeal assumed, without 2 deciding, any claimed federal constitutional error would have been harmless. See ECF 3 17-21 at 20. Because nothing in the record suggests this Court should question the 4 presumption of on-the-merits adjudication, the Court will address below both 5 constitutional issues. 6 1. Due process did not require an instruction on imperfect self- 7 defense. 8 Sanchez argues instructional errors can raise constitutional issues in the specific 9 context of voluntary manslaughter because erroneous instructions can impermissibly 10 absolve the prosecution of its burden to prove every element of a murder charge beyond a 11 reasonable doubt. ECF No. 17-18 at 48–49. Following the close of evidence, Sanchez 12 requested an imperfect self-defense instruction, which the trial court declined to give. ECF 13 No. 17-11 at 114–116, 129–32 (8 RT 1164:15–1166:2, 1179:5–1182:12). Sanchez’s 14 argument as to the appropriate rule of decision here has merit, but respondent has the better 15 argument as to the appropriate result. 16 Due process requires the government prove every element of a charged crime 17 beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970). As a corollary to 18 that rule, any time a state makes “malice” an element of murder, and the absence of malice 19 commutes murder to voluntary manslaughter under state law, constitutional due process 20 requires that the prosecution prove the absence of the commuting factors beyond a 21 reasonable doubt; but only if the evidence raises triable issues of voluntary manslaughter 22 for the jury. See Mullaney v. Wilbur, 421 U.S. 684, 697–98, 703–04 (1975); see also 23 United States v. Begay, 33 F.4th 1081, 1088 (9th Cir. 2022) (noting under Mullaney the 24 prosecution bears the burden of disproving the mitigating factor and the trial court must so 25 instruct the jury, but “such an instruction is only required if the defense is fairly raised”); 26 accord United States v. Roston, 986 F.2d 1287, 1290 (9th Cir. 1993); Walker v. Endell, 850 27 1 F.2d 470, 472 (9th Cir. 1987). Under California law, “imperfect self-defense” commutes 2 murder to manslaughter because it negates the element of malice. See People v. 3 Breverman, 19 Cal. 4th 142, 153-54 (1998); see also id. at 189 (Kennard., J., dissenting) 4 (“[T]he complete definition of malice is the intent to kill . . . plus the absence of both heat 5 of passion and unreasonable self-defense.” (emphasis removed)). Thus, the Court must 6 resolve whether, on the facts of this case and given how California treats the “malice” 7 element of a murder charge, due process required the trial court to instruct the jury on 8 voluntary manslaughter by way of imperfect self-defense, including the prosecution’s 9 obligation to prove beyond a reasonable doubt that Sanchez had not engaged in imperfect 10 self-defense. 11 Respondent contends there is no federal issue here because “the failure . . . to instruct 12 on lesser-included offenses in a non-capital case does not present a federal constitutional 13 claim.” ECF No. 14-1 at 15:21–25. Respondent is partly correct: while the Supreme Court 14 has expressly held a trial court must instruct on lesser included offenses in capital cases, 15 see Beck v. Alabama, 447 U.S. 625, 635–38 (1980), it has reserved judgment on whether 16 due process requires the giving of a lesser-included offense in all criminal cases, see Keeble 17 v. United States, 412 U.S. 205, 213 (1973); Bashor v. Risley, 730 F.2d 1228, 1240 (9th Cir. 18 1984). Respondent suggests this Court should follow Solis v. Garcia, 219 F.3d 922, 924– 19 25, 928–29 (9th Cir. 2000), in which the Ninth Circuit held due process did not require a 20 voluntary manslaughter instruction in a case where the defendant had been convicted of 21 second-degree murder under an aiding and abetting theory. But, as that Court noted, Solis 22 was “not a Winship-type case . . . because the instructions did not omit any element of the 23 second degree murder charge against” the defendant, which in turn did not require proof 24 of “malice” on Solis’s part because he was liable as an aider and abettor, not a principle. 25 See 219 F.3d at 927. Thus, the line of cases following Beck and Keeble, which address the 26 issue of lesser included offenses broadly without regard to the specific rule of Mullaney, 27 1 do not resolve Sanchez’s actual argument, which invokes “clearly established” Supreme 2 Court doctrine specific to murder charges where the state must prove malice, and where 3 proof of voluntary manslaughter negates the element of malice.3 4 Having determined Mullaney supplies the rule of decision here, not Beck or Keeble, 5 this Court must determine whether due process required the trial court to instruct on 6 imperfect self-defense in this case. As set forth, supra, due process would only require 7 giving the instruction if the trial record placed voluntary manslaughter properly in issue. 8 In California the lesser included offense of imperfect self-defense requires, among other 9 elements, that “[t]he defendant actually believed” he “was in imminent danger of being 10 killed or suffering great bodily injury.” See CALCRIM 571 (emphasis added).4 After 11 hearing an offer of proof from Sanchez’s counsel, the trial court rejected Sanchez’s request 12 for a lesser included offense instruction. ECF No. 17-11 at 126–32 (8 RT 1176:1– 13 1182:12). The court reasoned that, although a modicum of circumstantial evidence 14 suggested N.D. could have been armed with a handgun, there was insufficient evidence to 15

16 17 3 The two lines of cases are not in conflict. One analyzes the issue in terms of the potential sentence faced by the accused. The other focuses instead on the prosecution’s burden to 18 secure a conviction. A hypothetical case might be both, e.g., a murder case in which state 19 law makes malice an element of murder and the prosecution seeks the death penalty; or it might be neither, e.g., a property crime case in which the accused faces no more than 20 several years in prison. This case is one (because Sanchez was tried for murder in 21 California, where “malice” is an element of murder) but not the other (because Sanchez did not face the death penalty). The Court also notes not every murder charge will implicate 22 Mullaney because other states treat the mens rea of murder differently, and not all state 23 laws will implicate due process in the same fashion. See, e.g., People v. Patterson, 39 N.Y.2d 288, 302–04 (1976). 24 4 California’s pattern jury instructions are, when given, compliant with Mullaney because 25 they accurately instruct the jury on the prosecutions’ burden to prove malice beyond a 26 reasonable doubt, including proof the defendant did not act in imperfect self-defense. See CALCRIM 571. 27 1 submit the question to the jury because, at the time of the shooting, Sanchez left the group 2 that included N.D., went to his apartment to get a gun, then returned and shot Lopez. Id. 3 at 129–32 (8 RT 1179:5–1182:12). Accordingly, the court agreed with the prosecution that 4 there never could have been an actual belief, however unreasonable, of imminent harm 5 because harm cannot be “imminent” when the accused retreats from any potential threats 6 and then later returns of his own accord. Id. at 127–28, 129, 132 (8 RT 1177:2–1178:16, 7 11798:5–9, 11982:8–12). 8 The Court of Appeal rejected Sanchez’s claim of trial error. See ECF No. 17-21 at 9 17–20. Based on its independent review of the record, that Court of Appeal agreed with 10 the trial court, holding “there was insufficient evidence to support a finding that defendant 11 actually feared that N.D. or Jordy posed” a sufficiently “imminent” danger to warrant 12 giving the requested instruction. Id. at 19. If the record were so limited, this Court could 13 easily conclude the Court of Appeal’s decision was not “beyond any possibility of fair- 14 minded disagreement” about the requirements of due process, and thus beyond the reach 15 of habeas review. 16 But this case involves a twist. The trial judge agreed, upon Sanchez’s request, to 17 give CALCRIM 505 (Justifiable Homicide: Self-Defense or Defense of Another). See ECF 18 No. 17-11 at 132, 135 (8 RT 1132:8–16, 1185:14–19). In so doing, the court overruled an 19 objection from the prosecution that, based on the evidence in the case, there was no 20 imminent threat that could justify self-defense or the defense of another. Id. at 133–34 (8 21 RT 1183:8–1184:2). Under California law, the requirement of “imminent” harm is 22 identical for so-called “perfect” self-defense, which is a complete defense to a homicide 23 charge, and “imperfect” self-defense, which merely commutes murder to voluntary 24 manslaughter. Compare CALCRIM 505 with CALCRIM 571. The trial court’s ruling 25 thus presents, at least on the surface, a material inconsistency because it ruled the evidence 26 27 1 was simultaneously insufficient for one instruction but apparently was sufficient for the 2 other. 3 Sanchez argued to the Court of Appeal that any time the evidence warrants a 4 requested instruction on perfect self-defense, the evidence is per se sufficient to require a 5 mandatory instruction on imperfect self-defense. See ECF 17-18 at 45 (citing People v. 6 Ceja, 26 Cal. App. 4th 78, 85–86 (1994), overruled on other grounds, People v. Blakeley 7 23 Cal. 4th 82, 91 (2000)). The Court of Appeal rejected that contention, noting a split of 8 authority in California appellate courts, and declining to adopt the bright line rule 9 formulated in the concurrence to the Ceja case. ECF No. 17-21 at 19–20. This Court’s 10 review does not encompass the state-law issue of whether the concurrence in Ceja correctly 11 states California law. If, however, the inconsistency in the trial court’s reasoning is 12 fundamentally irreconcilable—that is to say, if the evidence required the trial court to make 13 a binary choice between instructing on both theories or neither theory—then the state 14 court’s application of constitutional law might rise to the level of legal error about which 15 there could not be fair-minded disagreement, and which could warrant habeas relief, 16 because it could prove logically irreconcilable. 17 Based on this Court’s independent review of the record, however, any perceived 18 inconsistencies in the trial court’s reasoning evaporate upon considering its justifications 19 for denying the request for a lesser included offense instruction while simultaneously 20 instructing on perfect self-defense. In addition to the due process requirement of lesser 21 included offense instructions imposed by Mullaney, “a trial court must instruct on the 22 defendant’s theory of the case.” See United States v. Seymour, 576 F.2d 1345, 1348 (9th 23 Cir. 1978). It has been repeatedly noted this standard is essentially mandatory, although 24 the exact language proposed by a criminal defendant need not be followed so long as the 25 jury instructions as a whole accurately convey the defense theory. See, e.g., United States 26 v. Lopez, 885 F.2d 1428, 1434 (9th Cir. 1989), overruled on other grounds by Schmuck v. 27 1 United States, 489 U.S. 705 (1989); United States v. Kenny, 645 F.2d 1323, 1337 (9th Cir. 2 1981); United States v. Sibley, 595 F.2d 1162, 1164-65 (9th Cir. 1979); United States v. 3 Kaplan, 554 F.2d 958, 968 (9th Cir. 1977). Instructions that accurately reflect the 4 defendant’s “theory of the case” must be given so long as “it is supported by law and has 5 some foundation in the evidence.” See United States v. Echeverry, 759 F.2d 1451, 1455 6 (9th Cir. 1985). 7 Sanchez justified the request for a perfect self-defense instruction not because due 8 process required it, but because, at least at the time his counsel argued the issue to the trial 9 court, that was his theory of the case. See ECF No. 17-11 at 134 (8 RT 1134:3–24). In 10 contrast, Sanchez’s counsel indicated imperfect self-defense was not the defendant’s theory 11 of the case. Id. at 126–27 (8 RT 1176:14–1177:1). Thus, two different legal standards 12 governed the trial court’s rulings on giving the two instructions. Under the “defense theory 13 of the case” rule, the trial court was virtually required to give the instruction upon request 14 so long as there was “some foundation in the evidence” supporting Sanchez’s theory. To 15 give the lesser included offense instruction, on the other hand, the trial court had to 16 conclude that, even if not requested, and even if over objection, there was sufficient 17 evidence on all the elements to present the lesser included offense to the jury as a 18 fundamental requirement of due process. 19 Based on this Court’s review of the trial record, only one witness, Sanchez’s former 20 roommate Luis N., presented a version of the facts in which there was even slight 21 evidentiary support for an inference—however weakly drawn—that one of Jordy Lopez’s 22 friends might have been armed at the time of Lopez’s murder. ECF No. 17-10 at 31–34 (7 23 RT 881:8–884:6). Specifically, that witness testified to Sanchez’s statement he had seen 24 “something chrome” underneath the shirt of a man in Lopez’s crew shortly before the 25 shooting. Id. at 32–33 (7 RT 882:18–883:18). At the same time, that same witness testified 26 Sanchez retreated to a place of safety, got his own gun, and then returned before shooting 27 1 Lopez. Id. at 31–33 (7 RT 881:8–883:26).5 He also testified Sanchez shot Lopez after 2 some “cholos” had been “bugging” Sanchez for a beer, not because of any violence or 3 threats of violence aside from one man allegedly flashing a gun. Id. It was well within the 4 bounds of reason for the Court of Appeal to conclude, based on the only version of events 5 in which N.D. might have been armed, Sanchez could not have feared “imminent” harm. 6 At the same time, the Court of Appeal could reasonably conclude this de minimis 7 evidentiary showing satisfied the burden to justify an instruction on the defendant’s theory 8 of the case. 9 By silently affirming the trial court’s ruling and rejecting Sanchez’s due process 10 arguments, the Court of Appeal implicitly ruled the evidence satisfied the threshold for a 11 “defense theory of the case” instruction yet did not rise to the level where due process 12 required a lesser included offense instruction under Mullaney. This Court is satisfied the 13 Court of Appeal ruled well within the bounds of reason when it rejected Sanchez’s claims 14 of error on appeal. Accordingly, this Court finds there was no constitutional error. 15 2. Sanchez was not deprived of his right to present a defense. 16 As set forth, supra, the due process right to present a defense requires the jury be 17 instructed on the “defendant’s theory of the case.” See United States v. Seymour, 576 F.2d 18 1345, 1348 (9th Cir. 1978). Sanchez argues the trial court’s refusal to instruct on imperfect 19 self-defense deprived him of this right. ECF No. 17-18 at 41–49. Neither the Court of 20 Appeal’s Opinion nor respondent’s Opposition addresses this claim. See ECF No. 17-21 21 at 17–21; ECF No. 14-1 at 29–30. As this Court has already noted, Sanchez’s theory of 22 the case was perfect self-defense, at least at the time his counsel argued jury instructions 23

24 5 Sanchez’s other friend, Alfredo, also relayed a version of the facts to his wife in which 25 Sanchez retreated to a place of safety before returning to shoot Lopez, but he did not state 26 that anybody in the victim’s cohort was armed at the time of the shooting. See ECF No. 17-11 at 39–40, 44 (8 RT 1089:25–1090:15, 1084:2–7). 27 1 to the trial court, and he declined to make imperfect self-defense his theory of the case. See 2 ECF No. 17-11 at 126–27, 134 (8 RT 1134:3–24, 1176:14–1177:1).6 Sanchez has not 3 identified any authority suggesting a trial court must instruct on a theory of the case the 4 defendant later argues he could have advanced. This Court can therefore conclude Sanchez 5 was not entitled to the omitted instruction under the “theory of the case” doctrine because 6 imperfect self-defense was not in fact his theory of the case. The Court of Appeal’s implicit 7 rejection of Sanchez’s argument to the contrary was therefore well within the bounds of 8 reason, and it warrants no intervention by this Court. 9 B. The Voluntary Intoxication Instruction Raises No Constitutional Issues. 10 Sanchez charges the trial court with erroneously refusing to give an instruction on 11 “voluntary intoxication.” ECF No. 1 at 7; ECF No. 17-18 at 55. He asserted two different 12 grounds for federal constitutional error before the California Court of Appeal, claiming the 13 failure to instruct on intoxication (a) absolved the prosecution of its burden to prove “the 14 required mental state” for the crime of murder “beyond a reasonable doubt”; and (b) 15 “affected Sanchez’s constitutional right to have the jury determine every material issue 16 presented by the evidence.” ECF No. 17-18 at 59. 17 1. Due Process Did Not Require a Voluntary Intoxication Instruction 18 as a Lesser Included Offense. 19 20

21 22 6 As the Court of Appeal noted, Sanchez’s counsel appears to have changed course from treating this as a “self-defense” case, choosing instead to argue during closing that Sanchez 23 was “not the shooter.” See ECF No. 17-21 at 28–29. This Court is not concerned with how, 24 why, or even if counsel made the decision to change course. This tactical trial decision does not impact this Court’s analysis of Sanchez’s Petition because, as far as the trial 25 court’s duty to determine the appropriate jury instructions was concerned, the trial court’s 26 reasoning satisfied due process at the time counsel made the representations about what was the defense theory of the case. 27 1 Sanchez claimed on appeal that failing to instruct on voluntary intoxication “violated 2 the due process guarantee that requires the prosecution in a first[-]degree murder 3 prosecution to prove ‘the applicable mens rea for that crime’ beyond a reasonable doubt.” 4 ECF No. 17-18 at 59 (citing People v. Koontz, 27 Cal. 4th 1041, 1080 (2002)). To begin 5 with, Koontz does not stand for that point of law, as the cited portion of the California 6 Supreme Court’s opinion merely sets forth the legal standard for deliberation and 7 premeditation; it does not link them to any due process guarantee. See 27 Cal. 4th at 1080. 8 Although Sanchez provided no further substantive analysis other than a single sentence 9 and a citation to Koontz, this Court understands the gravamen of his argument to be that he 10 believes Winship and Mullaney require lesser included offense instructions in cases of 11 voluntary intoxication as they do in cases of imperfect self-defense, at least when the record 12 supports submission of the issue to the jury. Respondent does not accurately address this 13 argument because it construes the issue as whether due process required the voluntary 14 intoxication instruction as Sanchez’s theory of the case. See ECF No. 14-1 at 32–33. 15 Sanchez raises no such argument. See ECF No. 17-18 at 59. Respondent nonetheless 16 inadvertently reaches the correct conclusion because Sanchez presents no federal issue. 17 As set forth, supra, when state law distinguishes between murder and manslaughter 18 based on mitigating factors that negate the element of “malice” necessary to a charge of 19 murder, the prosecution must prove the absence of the mitigating factors beyond a 20 reasonable doubt if, but only if, the evidence could support a finding of the mitigating 21 factors. See Mullaney v. Wilbur, 421 U.S. 684, 697-98, 703–04 (1975); People v. 22 Breverman, 19 Cal. 4th. 142, 189 (1998) (Kennard., J., dissenting). The California 23 Supreme Court has expressly held state law does not recognize voluntary intoxication as a 24 factor that would commute a murder charge to voluntary manslaughter, which is a sharp 25 distinction from the lesser included offense of involuntary manslaughter by way of 26 imperfect self-defense. See People v. Saille, 54 Cal. 3d 1103, 1113–17 (1991). Thus, 27 1 because intoxication does not commute murder to manslaughter by negating the malice 2 element, due process never imposes a requirement upon the prosecution to prove the 3 accused was not intoxicated at the time of a killing. 4 Even if there were a constitutional guarantee of an instruction on voluntary 5 intoxication, the state court’s application of such a precept would have been well within 6 the bounds of reason here. Due process only requires a lesser included offense instruction 7 in a murder case when the evidence is sufficiently substantial that it must be submitted to 8 the jury. See Mullaney, 421 U.S. at 697–98, 703–04. As noted by the California Court of 9 Appeal in this matter, voluntary intoxication instructions are only proper when there is 10 evidence from which the jury could conclude the defendant was in fact intoxicated and his 11 intoxication in fact affected his ability to form the specific intent to commit the charged 12 crime. See ECF No. 17-21 at 22–23 (citing People v. Williams, 16 Cal. 4th 635, 677 13 (1997)). Here, Sanchez requested the trial court instruct on voluntary intoxication because 14 circumstantial evidence might arguably have supported a conclusion that Sanchez was 15 intoxicated at the time of the shooting. See ECF No. 17-11 at 116, 117 (8 RT 1166:4–21, 16 1167:9–18). The Court ultimately denied the requested instruction because there was no 17 evidence suggesting Sanchez’s intoxication affected his ability to form the specific intent 18 to kill. See id. at 135–39 (8 RT 1185:14–1189:16). 19 This Court has found no evidence in the record from which a jury could conclude 20 Sanchez was so affected. Thus, even if due process required the prosecution to disprove 21 intoxication in an appropriate case, this would not be a such a case because there was no 22 evidence to submit to the jury on an essential element of voluntary intoxication. Based on 23 the record before this Court, the California courts would have reached the only reasonable 24 application of Mullaney on these facts, which would come nowhere near the standard for 25 error prescribed by 28 U.S.C. § 2254(d). 26 27 1 2. Sanchez’s “Materiality” Argument Does Not Raise a 2 Constitutional Issue. 3 Sanchez claims the trial court’s refusal to instruct on voluntary intoxication “affected 4 [his] constitutional right to have the jury determine every material issue presented by the 5 evidence, to resolve disputed factual issues, to weigh the evidence, and to draw reasonable 6 inferences from basic facts to ultimate facts.” ECF 17-18 at 59 (internal citations omitted). 7 Sanchez does not identify a United States Supreme Court case that sets forth “clearly 8 established” case law that might be implicated here. He cites one case addressing the 9 standard for reviewing so-called Jackson claims in which a convicted prisoner challenges 10 the sufficiency of the evidence to sustain his conviction. See id. (citing Wright v. West, 11 505 U.S. 277, 296–97 (1992)). Another case addresses the pleading burden placed upon 12 the prosecution by the Federal Rules of Criminal Procedure. See id. (citing Mathews v. 13 United States, 485 U.S. 58, 64–65 (1988)). Sanchez also identifies a California Supreme 14 Court case which stands for the proposition that a jury must determine the ultimate facts 15 on each element of a charged crime, and a court can neither direct the jury to reach a 16 conviction nor direct the jury that an element of a crime has been established as a matter 17 of law. See id. (citing People v. Hedgecock, 51 Cal. 3d 395, 407-09 (1990)); accord 18 Connecticut v. Johnson, 460 U.S. 73, 84 (1983); People v. Figueroa, 41 Cal. 3d 714, 733 19 (1986). This case presents none of these issues. 20 The pleadings of a pro se litigant are entitled to the benefit of liberal construction. 21 See Rickson v. Pardus, 551 U.S. 89, 94 (2007). At the same time, this Court is not obliged 22 to craft a tenable legal argument based on a single sentence in a brief that supplies neither 23 legal nor factual authority for a litigant’s position. See Jones v. Gomez, 66 F.3d 199, 204– 24 05 (9th Cir. 1995); James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994). The most charitable 25 interpretation this Court can give Sanchez’s Petition is that he claims the failure to instruct 26 on voluntary intoxication somehow equated to the trial judge removing the ultimate factual 27 1 question of Sanchez’s guilt from the jury, which might violate due process consistent with 2 Connecticut v. Johnson, 460 U.S. at 84. Sanchez’s conclusory briefing to the California 3 Court of Appeal and Supreme Court fails to supply pertinent legal authority or explain how 4 or why the trial judge’s refusal to give the requested instruction violated due process as he 5 claims. His Petition adds nothing to the analysis because he simply incorporates his state 6 court arguments by reference in their entirety. See ECF No. 1 at 7. Thus, not only has 7 Sanchez failed to identify “clearly established” Supreme Court law that could guide this 8 Court’s analysis, he has also failed to explain how any law, clearly established or otherwise, 9 was misapplied by the courts of California in his case. 10 Even so, this Court has independently reviewed the instructions given to the jury in 11 this matter, and they reveal the trial court accurately instructed the jury both on its duty to 12 find the facts, and its obligation to decide whether the prosecution had proven the murder 13 charge beyond a reasonable doubt. See ECF No. 17-1 at 106–07, 110, 135–37. Although 14 the Court of Appeal’s Opinion does not explore the due process sufficiency of these 15 instructions, its implicit rejection of Sanchez’s due process claim is a textbook application 16 of Connecticut v. Johnson, and therefore Sanchez could not meet the high burden under 28 17 U.S.C. § 2254(d) to prove the state court applied federal law in a manner that is 18 unreasonably erroneous. This Court has accordingly found no error on this ground. 19 C. Sanchez’s Challenge To The Jury Instructions On Self-Defense And 20 Provocation Are Procedurally Defaulted, And They Are Meritless 21 Because They Do Not Raise Federal Questions. 22 Sanchez claims the trial court’s instructions on “self-defense/defense of another and 23 sudden quarrel/heat of passion voluntary manslaughter were prejudicially incomplete and 24 misleading.” ECF No. 17-18 at 61. He claims constitutional error because the instructions 25 as given allegedly absolved the prosecution of its burden to prove “the absence of self- 26 defense/defense of another” and “the absence of hea[t] of passion” beyond a reasonable 27 1 doubt. Id. at 68. He also claims federal constitutional error under the “materiality” 2 standard he asserted for the instruction on voluntary intoxication. See id. at 68–69. 3 1. This claim is procedurally defaulted. 4 The procedural default doctrine bars federal habeas review of a state court conviction 5 where there are “independent” and “adequate” state procedural grounds to support the 6 judgment. See Martinez v. Ryan, 566 U.S. 1, 9–10 (2012). The state procedural rule in 7 question must not derive from federal law, and it must be “firmly established and 8 consistently followed” in state courts. See id. A prisoner may demonstrate an exception 9 should apply if there is “cause for the default” and “prejudice from a violation of federal 10 law.” See id. at 10. When a litigant fails to object to jury instructions at trial, and a state 11 appellate court deems the argument forfeited or waived, any claimed error is procedurally 12 defaulted on habeas review and even the United States Supreme Court is “without authority 13 to address” claims of instructional error. See Sochor v. Florida, 504 U.S. 527, 534 (1992). 14 Sochor, which is virtually indistinguishable from this case, unequivocally dictates 15 the result here. Sanchez concedes that his trial counsel acceded to the trial court’s 16 instructions on self-defense and voluntary manslaughter without objection or request for 17 clarification. ECF No. 17-18 at 61. This Court’s independent review of the record 18 corroborates the instructions were given at counsel’s request, and in the case of self-defense 19 over the prosecution’s objection. See ECF No. 17-11 at 114, 115, 132–34 (8 RT 1164:15– 20 21, 1165:24–27, 1182:8–1184:2). On this basis, the Court of Appeal held Sanchez had 21 “forfeited his claim of error” by failing to seek clarification or modification from the trial 22 court. ECF No. 17-21 at 24. California’s forfeiture doctrine is firmly established and 23 consistently applied. See People v. Livingston, 53 Cal. 4th 1145, 1165 (2012); People v. 24 Saunders, 5 Cal. 4th 580, 589-90 (1993). Although the Court of Appeal also addressed the 25 substance of the claim on the merits in dicta as an alternative holding, this does not change 26 the result of Sanchez’s procedural default. See Harris v. Reed, 489 U.S. 255, 264 n.10 27 1 (1989); Towery v. Shriro, 641 F.3d 300, 311 n.2 (9th Cir. 2010). Sanchez has made no 2 showing there was cause to excuse his forfeiture, so this Court concludes the claim is 3 procedurally defaulted. 4 2. Notwithstanding the procedural default, the claim is meritless. 5 Sanchez argues in conclusory fashion the trial court’s instructions on self-defense 6 and voluntary manslaughter violated the due process requirements of proving the absence 7 of both self-defense and provocation in a murder case. See ECF No. 17-18 at 68. He also 8 raises his “materiality” argument without any further elaboration of its contours than he 9 did in the context of the voluntary intoxication instruction. This Court finds no error for a 10 host of reasons. 11 Sanchez directs this Court to the body of case law, already discussed at length, supra, 12 which addresses the due process implications of giving lesser included offense instructions 13 in homicide cases. See ECF No. 17-18; Mullany v. Wilbur, 421 U.S. 684, 703 (1975); 14 People v. Martinez, 31 Cal. 4th 673, 707 (2003); People v. Rios, 23 Cal. 4th 450, 458–59 15 (2000). But Sanchez fails to explain how those cases, which address imperfect self-defense 16 as a lesser included offense of murder, impact the ultimate burden of persuasion in a case 17 where the defendant claims perfect self-defense. Under California law, perfect self-defense 18 is a complete defense to homicide, not a lesser included offense of murder. See People v. 19 Barton, 12 Cal. 4th 186, 194–98 (1995). Although due process, as interpreted by the 20 Supreme Court in Winship and Mullaney, imposes instructional requirements in certain 21 murder cases, the Supreme Court has expressly refused to extend categorically the Winship 22 doctrine to affirmative defenses. See Gilmore v. Taylor, 508 U.S. 333, 343 (1993); see 23 also Martin v. Ohio, 480 U.S. 228, 235–36 (1987) (holding states may, consistent with due 24 process, require defendants to prove perfect self-defense by a preponderance of the 25 evidence). Thus, the Constitution did not require the prosecution to disprove perfect self- 26 27 1 defense as a condition of obtaining a conviction, and Sanchez has therefore identified no 2 clearly established federal law of which he can claim a violation.7 3 Sanchez correctly states that due process required the prosecution to prove beyond 4 a reasonable doubt that Sanchez was not provoked if the evidence warranted a jury 5 instruction on the lesser included offense of voluntary manslaughter by reason of 6 provocation from a sudden quarrel or in the heat of passion. ECF No. 17-18 at 68. 7 However, Sanchez has failed to explain in even cursory detail how the trial court’s 8 instructions in this case violated that fundamental precept. This Court’s review of the 9 instructions given to the jury on voluntary manslaughter by reason of provocation show 10 the jury was accurately instructed that “[t]he People have the burden of proving beyond a 11 reasonable doubt that the defendant did not kill as the result of a sudden quarrel or in the 12 heat of passion.” See ECF No. 17-1 at 142. This Court can only conclude that, far from 13 an erroneous application of federal law, the Court of Appeal implicitly rejected Sanchez’s 14 argument because, in this Court’s assessment, the trial court’s voluntary manslaughter 15 instructions conformed to due process. 16 As set forth, supra, this Court will construe Sanchez’s “materiality” argument [ECF 17 No. 17-18 at 68–69] as a charge that the trial court somehow instructed the jury it could 18 return a guilty verdict without independently finding the prosecution had proven each 19 element of the charged crime beyond a reasonable doubt. This Court has already concluded 20 this is not a “clearly established” matter of constitutional law as argued by Sanchez on the 21 facts of this case. Moreover, the jury was accurately instructed on its role and the obligation 22

23 24 7 Had Sanchez identified clearly established law there would nonetheless be no error. The self-defense instruction given to the jury in this matter specifically indicated the 25 prosecution carried “the burden of proving beyond a reasonable doubt that the killing was 26 not justified.” See ECF No. 17-1 at 144. Thus, even if due process imposed the Winship and Mullaney requirements here, the jury would have been properly instructed. 27 1 to find the facts and not convict unless the prosecution proved its case beyond a reasonable 2 doubt. See ECF No. 17-1 at 106–07, 110, 135–37. This Court, accordingly, finds no error 3 on Sanchez’s third claim. 4 D. There Was No “Cumulative Error” Amounting To An Abridgment Of 5 Sanchez’s Due Process Rights Because There Was No Error to Cumulate. 6 Sanchez asserts the trial court’s alleged errors identified in the first three grounds for 7 relief, if individually harmless, had a “cumulative effect” that “irreparably prejudice[d] 8 Sanchez’s constitutional right to a fair trial.” See ECF No. 17-18 at 72; see also ECF No. 9 1 at 9. Sanchez does not identify a Supreme Court case setting forth “clearly established” 10 federal law directly on point. See ECF No. 17-18 at 72. Respondent appears to agree with 11 Sanchez that this Court should review for cumulative error, and, like Sanchez, it directs 12 this Court’s attention to Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007), in which the 13 Ninth Circuit, relying on Chambers v. Mississippi, 410 U.S. 284, 302–03 (1973), held 14 “[t]he Supreme Court has clearly established that the combined effect of multiple trial court 15 errors violates due process where it renders the resulting criminal trial fundamentally 16 unfair.” See ECF No. 14-1 at 46. Respondent also cites Ybarra v. McDaniel, 656 F.3d 17 984, 1001 (9th Cir. 2011), for the proposition that a federal court may grant a writ of habeas 18 corpus on the basis of cumulative error “when there is a ‘unique symmetry’ of otherwise 19 harmless errors, such that they amplify each other in relation to a key contested issue in the 20 case.” See id. 21 The Supreme Court has neither explicitly overruled nor endorsed either Parle or 22 Ybarra, but in the years following those decisions the high court has forcefully admonished 23 the courts of appeals, including the Ninth Circuit, against framing narrow Supreme Court 24 precedents at a high level of generality to justify habeas corpus relief. See Lopez v. Smith, 25 574 U.S. 1, 6 (2014); Nevada v. Jackson, 569 U.S. 505, 512 (2013); accord Wright v. Van 26 Patten, 552 U.S. 120, 126 (2008); Robertson v. Pichon, 849 F.3d 1173, 1182 (9th Cir. 27 1 2017). At the same time, the Supreme Court has also held a “general standard” may be 2 derived from its jurisprudence in support of habeas corpus applications. See Marshall v. 3 Rodgers, 569 U.S. 58, 62 (2013); Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). 4 In Chambers, the decision on which the Ninth Circuit’s cumulative error doctrine 5 rests, the Supreme Court narrowly held evidentiary exclusions, coupled with a denial of 6 the fundamental right to cross-examination, effectively deprived the criminal defendant of 7 a fair trial in violation of due process. See 410 U.S. at 302–03. The Court explicitly stated 8 it “establish[ed] no new principles of constitutional law” and limited its holding to “the 9 facts and circumstances of” the case before it. Id. This Court’s interpretation of Chambers 10 is that, based on the high court’s language explicitly limiting the holding, Chambers should 11 be narrowly construed such that any case that may be distinguished on its facts would fall 12 outside the rule. The Supreme Court decisions in Lopez and Jackson further inform this 13 Court’s interpretation of Chambers, and lead to the conclusion that Parle and its progeny 14 erroneously treated Chambers as establishing a general principle of clearly established 15 federal law.8 Here, the claimed errors differ in kind from the errors identified by the 16 Supreme Court in Chambers. Thus, this Court concludes there is not a clearly established 17 federal law at issue in this case. 18 In an appropriate case, this Court might be forced to choose between following 19 Parle, which directs the courts of this Circuit to consider cumulative error, and the string 20 of cases that post-date Parle, which direct federal courts to follow the Supreme Court’s 21 holdings and “defer to the state court’s decision” in cases when the Supreme Court has not 22 established a controlling legal principle. This Court need not decide, at least in this case, 23

24 8 As further evidence the cumulative error doctrine is not a matter of clearly established 25 Supreme Court doctrine, this Court notes the Circuits are split on the matter, which 26 suggests the law is unclear at best. Compare Parle, 505 F.3d at 927, with Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005). 27 1 whether the cumulative error doctrine is a matter of clearly established federal law because 2 according to the Ninth Circuit there can be no cumulative error when there are no errors in 3 the trial proceeding that could cumulate. See United States v. Solorio, 669 F.3d 943, 956 4 (9th Cir. 2012); Hayes v. Ayers, 632 F.3d 500, 524 (9th Cir. 2011). This Court has already 5 determined Sanchez has not identified a single instructional error committed by the 6 Superior Court. Assuming without deciding that habeas corpus relief may issue for 7 cumulative error, Sanchez’s Petition fails because no errors cannot be deemed cumulative. 8 E. This Court Lacks Jurisdiction To Review The Restitution Order. 9 Sanchez claims the trial court violated his due process rights by imposing fines and 10 restitution without first holding a hearing on his ability to pay. ECF No. 1 at 10; ECF No. 11 17-18 at 74 (citing People v. Duenas, 30 Cal. App. 5th 1157, 1168, 1172 (2019)). This 12 Court may only entertain a writ petition on grounds the petitioner is “in custody” in 13 violation of federal law. See 28 U.S.C. § 2254(a). The “in custody” requirement limits 14 this Court’s jurisdiction to hear habeas petitions to situations where a person is “literally” 15 incarcerated or otherwise held against his will—and restitution orders do not meet that 16 standard because they impose no significant restraint on a petitioner’s liberty. See Bailey 17 v. Hill, 599 F.3d 976, 977–79, 982 (9th Cir. 2010). Even here, where Sanchez is 18 indisputably “in custody” and his Petition asserts grounds for relief over which the Court 19 has jurisdiction, the Court nonetheless should not hear any challenge to the restitution 20 order. See Crawford v. Koenig, 2:21-cv-02679-FLA (AGRx), 2021 WL 5263854, at *3 21 (C.D. Cal. Sept. 30, 2021); accord Washington v. McQuiggin, 529 F. App’x 766, 773 (6th 22 Cir. 2013); Washington v. Smith, 564 F.3d 1350, 1350-51 (7th Cir. 2009). This Court 23 accordingly finds there is no jurisdiction to award relief on this ground.9 24 25 9 Respondent urges the Court to deny this request for relief because it is procedurally 26 defaulted. See ECF No. 14-1 at 48. The Court notes Sanchez conceded the fines and 27 restitution at his sentencing hearing. See ECF No. 17-15 at 3–4 (12 RT 1453:24–1454:5). CERTIFICATE OF APPEALABILITY 2 Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, “[t]he 3 || district court must issue or deny a certificate of appealability when it enters a final order 4 adverse to the applicant.” A certificate of appealability should be issued only where the 5 || petition presents “a substantial showing of the denial of a constitutional right.” 28 U.S.C. 6 2253(c)(2). To obtain a certificate of appealability, a petitioner must show “that 7 ||reasonable jurists would find the district court’s assessment of the constitutional claims 8 || debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). In this case, Petitioner 9 || has not made a substantial showing of the denial of a constitutional right. Accordingly, the 10 ||Court DENIES a certificate of appealability. 11 VI. CONCLUSION 12 For the reasons set forth above, IT IS HEREBY ORDERED the Court ADOPTS the 13 ||report and recommendation in part and DENIES the petition for writ of habeas corpus. The 14 ||Court also DENIES a certificate of appealability. The Clerk of the Court is instructed to 15 || close the file. 16 IT IS SO ORDERED. 17 ||Dated: January 3, 2023 2 st 18 Hon. athe Coke 19 United States District Judge 20 21 22 23 24 Ooo 26 || However, the Court does not believe it has jurisdiction to consider the issue of procedural default given the lack of jurisdiction to review the merits of the underlying claim. 27 28 22-CV-0192-GPC-KSC