# Pachito v. Tampkins

> District Court, S.D. California · June 3, 2021

URL: https://www.frixlaw.com/law-library/cases/10083790

## Case

- **Court:** District Court, S.D. California
- **Decided:** June 3, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10083790

## How later opinions describe it (automated extraction)

- holding that district courts retain 21 authority to issue certificates of appealability under AEDPA
- stating that “de novo review of a R & R is only required when an 17 objection is made”

## Opinion text

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7 UNITED STATES DISTRICT COURT
8 SOUTHERN DISTRICT OF CALIFORNIA
9
10 AARON PACHITO, Case No.: 15cv2457-JAH (KSC)

11 Petitioner,
ORDER ADOPTING THE
12 v. MAGISTRATE JUDGE’S REPORT
AND RECOMMENDATION AND
13 CYNTHIA Y. TAMPKINS,
DENYING PETITION FOR WRIT
14 Respondent. OF HABEAS CORPUS AND
DENYING CERTIFICATE OF
15
APPEALABILITY
16

17 INTRODUCTION
18 Pending before the Court is Aaron Pachito’s (“Petitioner”) Petition for a Writ of
19 Habeas Corpus pursuant to 28 U.S.C. section 2254. Respondent filed an answer and
20 Petitioner filed a traverse. Pursuant to 28 U.S.C. section 636(b)(1), the Honorable Karen
21 S. Crawford, United States Magistrate Judge, submitted a Report and Recommendation
22 (“Report”) to this Court recommending this Court deny the petition. Petitioner filed
23 objections to the Report. After careful consideration of the pleadings and relevant exhibits
24 submitted by the parties, and for the reasons set forth below, this Court OVERRULES the
25 objections, ADOPTS Judge Crawford’s Report, DENIES the petition and DENIES a
26 certificate of appealability.
27 //
28 //
1 FACTUAL BACKGROUND
2 The following facts are taken from the California Court of Appeal’s unpublished
3 decision denying Petitioner’s direct appeal:
4
Durae Delisle and [Petitioner] began a relationship in 2007, and she gave birth
5
to their daughter, in 2009. [Petitioner] has a history of domestic violence toward
6 Delisle, particularly when under the influence of alcohol.
7
In the Spring of 2008, he slapped her in the face after hearing a message a man
8 left on her phone. A few months later, he threw a cup of coffee at her face. It split
her lip and broke a front tooth, requiring a root canal. In December 2008, he came
9
home from a sporting event ‘very, very drunk,’ ‘went on and on’ about how much
10 he hated her religion, and struck her ‘very hard’ on the side of her head, popping her
eardrum. As she lay on the floor crying, he kicked her and smashed her head several
11
times into a cupboard. She went to urgent care, and had pain in her ear for two to
12 three weeks and difficulty hearing.
13 On December 12, 2008, an officer with the San Diego Police Department
14 responded to a call from Delisle. She had been crying, and she told the officer that
she broke up with [Petitioner] a few days earlier and he ‘wanted to physically fight
15 with her and punch her face.’ She reported the cup incident to the officer.
16
In February 2009, when Delisle was two months pregnant, [Petitioner]
17 punched her in the stomach because he was upset about the pregnancy. About a
month later, he became upset because she was crying while reading an e-mail. He
18
was drunk, and he put both hands around her neck and choked her ‘really bad’ until
19 she ‘start[ed] to get dizzy.’ He stopped for a few seconds, but then resumed choking
her. She knew from experience that if she pretended to be calm, he would calm
20
down.
21
On or about April 2010, [Petitioner] punched Delisle in the leg while she was
22
seated on a bed with their daughter. He had agreed to stop drinking and abusing her.
23 He was not drinking this time, which made her believe he would never stop the
abuse. After this incident, she took her daughter and left the area for several months.
24
25 At one point, Delisle went to Seattle, Washington, and stayed with a friend.
[Petitioner] joined her in Seattle and they spent the night in a hotel. The following
26 day ‘he got really mad that he was spending so much money on hotel rooms’ when
27 he could be staying at the friend’s house. The friend was afraid of [petitioner] and
Delisle promised not to reveal the friend’s address to him. He screamed at her as she
28 was driving, and she pulled over and told him to get out of the car. He refused. She
1 went into a cafe and called the police because she was afraid of him. When the police
arrived, he fled.
2
3 In September 2010, Delisle returned to San Diego because she wanted to get
orders for custody and child support. In October 2010, she reported to a police officer
4
that ‘she got into an argument with her boyfriend, and he pushed her while she was
5 holding their one-year-old daughter.’ She told the officer ‘[s]he was afraid of him
and ran out of the house to the neighbor’s house next door and had the neighbors
6
call 911.’
7
In January 2011, Delisle obtained a restraining order against [Petitioner].
8 According to Delisle, child protective services intended to remove their daughter
9 from her custody unless she obtained one. Delisle and [Petitioner] agreed he would
have reasonable visitation with their daughter.
10
[Petitioner] broke the restraining order by calling her ‘nonstop’ about
11
resuming their relationship. She did not want to do so because he was ‘drinking
12 continuously,’ and sometimes when he drank, he was ‘very violent.’
13
In January 2011, Delisle reported to a police officer that he made 35 calls to
14 her within a few hours. The officer arrested [Petitioner] for violating the restraining
order. [Petitioner] told the officer he knew about the order, but he continued to call
15
her because he needed to know whether or not she was dating someone else so that
16 if she was, he could move on with his life.’ He admitted to the officer that he had
physically abused her.
17
18 In one of [Petitioner]’s calls to Delisle, he commented that he could pick the
lock of her apartment door. That concerned her because she lived in ‘a very old
19
building’ and ‘it would have been so easy to break inside.’ She asked the police to
20 give her safety tips, and they helped her with window locks and showed her ‘how to
block a door with a chair.’
21
22 One night in February or March 2011, Delisle left her apartment to retrieve
something from her car. [Petitioner] was outside her apartment, and he was ‘very
23 upset’ because he had gotten into her e-mail account and saw she was corresponding
24 with a man. He put one hand around her neck and choked her for approximately five
seconds. After this incident, she obtained a criminal protective order against him.
25
The night of March 24, 2011, Delisle received between 10 and 15 phone calls
26
while she was driving home. She believed they were from [Petitioner] and she
27 ignored them. When she arrived outside of her apartment, she called him. She could
tell from his tone of voice that he was ‘very, very angry: angrier than usual.’ He
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1 wanted to see their daughter the following day, and Delisle had not called him for
several days to schedule visitation.
2
3 During the call, [Petitioner] stated, ‘You’re lucky you called me, you fucking
bitch, because I was just about to come over there and knock down your front door
4
and murder you.’ He added, ‘I’m not going to hurt you, I’m going to murder you,
5 and the restraining order is not going to protect you and the police aren’t going to
protect you.’ He also said something to the effect of, ‘Why the fuck didn’t you
6
answer your phone after I called you 10 times, you fucking bitch.’
7
Delisle knew [Petitioner] was at his home, which was approximately 10 to 15
8 minutes from her apartment by car. She testified, ‘I was afraid he was going to come
9 over,’ and, ‘when he’s drinking, if he comes over to my house, it’s not a good
situation.’ When asked whether he could be violent, she responded, ‘Of course.’
10 Further, child protective services had been at her home that morning, and she
11 believed she should report the incident to avoid having their daughter being removed
from her custody. Delisle testified child protective services had visited her three
12 times after their daughter’s name showed up in police reports pertaining to
13 petitioner’s conduct. She testified, ‘I’m afraid of him. I’m afraid of child protective
services. I’m afraid of there being proof that he’s calling me and I’m not reporting
14 it. I’m afraid of the whole situation. It’s a nightmare.’
15
She decided to flag down a police officer to report the threats. She also
16 decided to spend the night in a hotel, and as a ‘safety precaution’ she asked the
officer, Cary Ochab, to escort her to her apartment and wait outside with her
17
daughter while she grabbed some clothes. She returned home the next day and
18 [Petitioner] left her alone for several months.
19
Officer Ochab testified Delisle ‘appeared nervous, anxious, almost like
20 physically shaking, like she was concerned about something.’ His report stated she
told him [Petitioner] said, ‘Why the fuck didn’t you answer the phone after I called
21
you 10 times, you fucking bitch? I was about to come over and knock down your
22 front door and kill you. I’m not going to hurt you, I’m just going to come over and
murder you.’
23
24 While Delisle was speaking with Ochab, [Petitioner] phoned her. She put the
call on speaker phone. She told [Petitioner] he should not be calling her, and he
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responded, ‘I don’t care if you have a restraining order. It can’t protect you,’ and,
26 I’m not afraid of the police.’ Ochab could ‘hear a male’s voice going on a rant,
yelling and screaming over the phone, making some reference to seeing his
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daughter.’ Ochab attempted to interrupt [petitioner] several times, but he ‘continued
28 with his yelling and screaming.’
1 Ochab later phoned [Petitioner] and ‘asked him about the threat that he made
and kind of cautioned him about making such threats, especially if he was concerned
2
about child custody in the future.’ [Petitioner] asked Ochab, ‘am I going out with
3 her, if I was fucking her.’ [Petitioner] did not deny threatening Delisle, but said ‘he
would never hurt her.’ [Petitioner] ‘tended to agree ... that he should probably be a
4
little more cautious with what he says towards Delisle.’ He asked Ochab ‘numerous
5 times if I could just drop the case.’
6
John Serrano, an investigator with the district attorney’s office, conducted a
7 recorded interview of Delisle in May 2011. When asked whether she denied being
afraid of [petitioner], Serrano testified, ‘No. She was definitely afraid of him.’ He
8
added, ‘She said that she was constantly having to watch her back; she wasn’t sure
9 if he was perhaps sitting down the street, watching her come home, so she was
definitely fearful of him.’ Delisle told Serrano she was afraid to spend the night of
10
March 24, 2011, at her home, ‘and she said she wanted to spend the money [on a
11 hotel room] to make sure that she was safe.’
12 Lodg. 5 (Doc. No. 10-17).
13 PROCEDURAL BACKGROUND
14 On December 12, 2012, a jury convicted Petitioner of making a criminal threat in
15 violation of California Penal Code Section 422. Lodg. 2, Reporter’s Transcript (“RT”) v.
16 11 (Doc. No. 10-13). Petitioner was sentenced to a total of eleven (11) years in state prison:
17 three years for the violation of Section 422, doubled to six years because Petitioner had a
18 prior conviction that qualified as a strike under California’s Three Strike’s law, and five
19 years additional because Petitioner had a prior conviction that qualified as a serious felony
20 under California Penal Code Section 677(a)(1). Lodg. 2, RT v. 12 (Doc. No. 10-14).
21 Petitioner appealed his conviction to the California Court of Appeal which affirmed
22 the decision in an unpublished opinion filed on October 27, 2014. Lodg. 5 (Doc. No. 10-
23 17). Petitioner raised the same arguments in a Petition for Review before the California
24 Supreme Court. Lodg. 6 (Doc. No. 10-18). The California Supreme Court summarily
25 denied the Petition on January 21, 2015. Lodg. 7 (Doc No. 10-19).
26 On October 28, 2015, Petitioner filed the instant Petition for Writ of Habeas Corpus
27 pursuant to 28 U.S.C. Section 2254 challenging his California state court conviction,
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1 asserting an insufficiency of evidence claim in violation of the Fourteenth Amendment.
2 Doc. No. 1. Respondent filed an answer and Petitioner filed a traverse. Doc. Nos. 9, 11.
3 Judge Crawford filed a Report recommending the Court deny the petition. Doc. No.
4 12. Petitioner filed objections to the Report. Doc. No. 13. Respondent did not file
5 objections or a reply to Petitioner’s objections.
6 LEGAL STANDARDS
7 I. Scope of Review of Report and Recommendation
8 The district court’s role in reviewing a magistrate judge’s report and
9 recommendation is set forth in 28 U.S.C. section 636(b)(1). Under this statute, the district
10 court “shall make a de novo determination of those portions of the report . . . to which
11 objection is made,” and “may accept, reject, or modify, in whole or in part, the findings or
12 recommendations made by the magistrate [judge].” 28 U.S.C. section 636(b)(1). When
13 no objections are filed, the Court may assume the correctness of the magistrate judge’s
14 findings of fact and the district court is not required to conduct a de novo review of the
15 magistrate judge’s report and recommendation. See Wang v. Masaitis, 416 F.3d 992, 1000
16 n. 13 (9th Cir. 2005) (stating that “de novo review of a R & R is only required when an
17 objection is made”); United States v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)
18 (en banc) (holding that 28 U.S.C. section 636(b)(1)(c) “makes it clear that the district judge
19 must review the magistrate judge’s findings and recommendations de novo if objection is
20 made, but not otherwise”).
21 II. Scope of Review of Federal Habeas Petition Pursuant to 28 U.S.C. 2254
22 Under Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal
23 court will not grant habeas relief with respect to any claim adjudicated on the merits in
24 state court unless the decision was: (1) contrary to or involved an unreasonable application
25 of clearly established federal law as determined by the Supreme Court; or (2) based on an
26 unreasonable determination of the facts in light of the evidence presented. 28 U.S.C.
27 §2254(d); Early v. Packer, 537 U.S. 3, 7-8 (2002). That standard under AEDPA is difficult
28
1 to meet and “demands that state court decisions be given the benefit of the doubt.” Cullen
2 v. Pinholster, 563 U.S. 170, 181 (2011) (internal quotes omitted).
3 A federal court may grant habeas relief where the state court decides a case “contrary
4 to” federal law by applying a rule different from the governing law set forth in Supreme
5 Court cases or decides a case differently than the Supreme Court on a set of
6 indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A court may
7 also grant habeas relief where a state court decision is an unreasonable application of
8 clearly established federal law, such as where the state court correctly identifies the
9 governing legal principle from Supreme Court decisions but unreasonably applies those
10 decisions to the facts at issue. Id. at 407. The state court decision must be more than
11 incorrect; to warrant habeas relief the state court’s application of “clearly established
12 federal law” must be “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75
13 (2003). “Objectively unreasonable” differs from “clear error” in that a federal court cannot
14 grant relief only because it believes the state court erroneously applied clearly established
15 federal law; rather, the application must be objectively unreasonable. Id. at 75-76 (internal
16 citation omitted).
17 If a state supreme court silently denies a petitioner’s appeal with a summary
18 dismissal, the reviewing federal habeas court must review the last reasoned state court
19 opinion in making a decision. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04, 806 (1991).
20 Where the state courts supply no reasoned decision on the claims presented for review, this
21 Court must perform an “‘independent review of the record’ to ascertain whether the state
22 court decision was objectively unreasonable.” Himes v. Thompson, 336 F. 3d 848, 853
23 (9th Cir. 2003) (internal citations omitted).
24 DISCUSSION
25 I. Petitioner’s Claim
26 Petitioner asserts he was denied due process under the Fourteenth Amendment
27 because there is insufficient evidence to support his conviction. Initially, Petitioner
28 contends the State’s ruling is not entitled to AEPDA deference because it omitted or
1 misinterpreted facts essential to evaluation of the sufficiency of the evidence. If AEDPA
2 applies and the state court accurately assessed the facts, he contends the words he spoke
3 during the phone call at issue do not establish the elements of a criminal threat.
4 Specifically, he argues the evidence was insufficient because the words did not convey an
5 immediate threat and were expressly conditional to a past event. If AEDPA does not apply,
6 Petitioner argues the result is the same because the evidence does not support a finding
7 beyond a reasonable doubt.
8 Respondent argues Petitioner cannot demonstrate the state court’s rejection of his
9 claim that there was insufficient evidence to support his conviction was contrary to, or an
10 unreasonable application of, controlling United States Supreme Court authority or the facts
11 presented. To the extent Petitioner challenges the state court’s interpretation of California
12 law and its conclusion that the statute does not require an unconditional threat, Respondent
13 argues this Court is bound by the state court’s determination and is limited to determining
14 whether the state court’s construction of the evidence and application of Supreme Court
15 law was error.
16 A. Report and Recommendation
17 In the Report, Judge Crawford found Petitioner challenges the California Court of
18 Appeal’s interpretation of section 422 as contrary to California law. Citing Estelle v.
19 McGuire, 502 U.S. 62, 67-68 (1991), Judge Crawford determined Petitioner’s argument
20 regarding the interpretation of section 422 is an issue of state law, and as such, is not
21 cognizable on federal habeas review.
22 Judge Crawford further found Petitioner’s arguments that the Court of Appeal
23 focused on some of his statements while ignoring others and made factual omissions,
24 including the victim’s conflicting testimony, presents conflicts in the evidence and
25 challenges to the weight of the evidence. Relying on the standard of review set forth in
26 Jackson v. Virginia, 443 U.S. 307 (1979), Judge Crawford reasoned the court could not
27 reweigh the evidence or resolve any conflicts but must presume the jury resolved any
28 conflicts in favor of the prosecution.
1 Judge Crawford determined that a rational jury could infer that Petitioner
2 specifically intended his words at the time in question to be taken by the victim as a threat
3 to carry out acts of physical violence against the victim, possibly resulting in death or
4 bodily injury and could also conclude from the evidence that Petitioner’s statements to the
5 victim at the time in question were “so unequivocal, unconditional, immediate and specific
6 as to convey to the victim a gravity of purpose and an immediate prospect of execution of
7 the threat” and Petitioner’s words caused the victim to “be in sustained fear” for her safety.
8 Report at 15 (Doc. No. 12). As such, Judge Crawford concluded the California Court of
9 Appeal did not unreasonably apply the clearly established Supreme Court law set forth in
10 Jackson and the California Court of Appeal’s rejection of Petitioner’s sufficiency of the
11 evidence argument was not contrary to clearly established Supreme Court law.
12 Additionally, Judge Crawford recommended this Court reject Petitioner’s contention
13 that his claim be reviewed outside of AEDPA deference determining the Supreme Court’s
14 decision in Panetti v. Quarterman, 551 U.S. 930, and the Ninth Circuit’s decision in Frantz
15 v. Hazey, 533 F.3d 724, do not apply.
16 B. Petitioner’s Objections
17 Petitioner objects to the Report and argues Judge Crawford incorrectly frames his
18 arguments as challenging the court’s interpretation of California law. He maintains he is
19 not challenging California definitional law of the elements of section 422 and he did not
20 assert that under California law the threat had to be solely unconditional.
21 Petitioner also objects to Judge Crawford’s determination that he relies on disputes
22 in the evidence. He maintains the Report views the context of the call as conflicts in the
23 record and improperly focuses on the out of context fragments of the statement to support
24 an immediate threat.
25 He also challenges the Report’s determination that a court must presume the trier of
26 fact resolved conflicting inferences in favor of the prosecution. Petitioner maintains the
27 due process doctrine accepted in the First, Second, Fifth, Seventh and Eleventh circuits
28 holds that if an equal or nearly equal theory of guilt and a theory of innocence is supported
1 by the evidence viewed in the light most favorable to the prosecution, a reasonable jury
2 must necessarily entertain a reasonable doubt.
3 C. Analysis
4 While Judge Crawford correctly explained a challenge to the Court of Appeal’s
5 interpretation of state law is not cognizable on habeas review, Petitioner now clarifies he
6 does not challenge the definition of the offense. Instead, he explains he argues the evidence
7 does not meet the constitutional minimum for proof of the elements. Specifically, he
8 argues there is insufficient evidence to support his conviction because the threat was not
9 “so clear, immediate, unconditional and specific that it communicated to [the victim] a
10 serious intention and the immediate prospect that the threat would be carried out” and “that
11 the threat actually caused [the victim] to be in sustained fear for her own safety or for the
12 safety of her immediate family.” Objection at 2-3 (Doc. No. 13). He contends his words
13 did not convey the prospect of immediate action because they were partially conditional in
14 that he said she was lucky she called him back because he was about to go to her home and
15 kill her but he will not because she called him. Moreover, Petitioner contends his
16 statements could not impose a threat of immediate harm or death because his intention
17 behind his phone call was to discuss seeing his daughter. He maintains the California Court
18 of Appeal unreasonably pulled a fragment from the middle of the statement at issue to
19 artificially give it present tense meaning of a true threat.
20 The Court of Appeal recognized that it was required to review the entire record in
21 the light most favorable to the judgment and determine whether a reasonable trier of fact
22 could find the defendant guilty beyond a reasonable doubt based upon the evidence. Lodg.
23 5, Opinion at 9 (Doc. No. 10-17). The court found the circumstances supported the
24 conviction even with Petitioner’s use of conditional language. Id. at 13. Relying on United
25 States v. Bagdasarian, 652 F.3d 1113 (9th Cir. 2011), Petitioner argues the Court of Appeal
26 could not embellish the words to make the law reach them and argues he was not saying
27 he was going to murder the victim and she did not fear he would do so. “When our law
28 punishes words, we must examine the surrounding circumstances to discern the
1 significance of those words’ utterance but must not distort or embellish their plain meaning
2 so that the law may reach them.” Id. This Court finds the Court of Appeal did not embellish
3 or distort the words. As discussed below, the Court of Appeal reviewed the plain meaning
4 of the words and looked to the context in finding a trier of fact could find guilt beyond a
5 reasonable doubt.
6 Petitioner maintains the undisputed context of the entire statement demonstrates it
7 conveyed no immediate threat and points to the victim’s testimony that she did not feel like
8 she was in danger at the moment and she wrote a letter to Petitioner’s attorney stating she
9 did not take his words literally and she did not feel Petitioner was going over to her home
10 that night. However, the Court of Appeal pointed to evidence of record, including the
11 victim’s testimony in finding the circumstances support the conviction. Petitioner appears
12 to challenge the court’s reliance on certain evidence and omission of other evidence in its
13 decision.
14 The Report addresses Petitioner’s argument that the Court of Appeal improperly
15 focused on some of his statements while ignoring others and found, at most, Petitioner
16 cited conflicting evidence in the record. Judge Crawford determined, under the standard
17 of review set forth in Jackson, a reviewing court cannot re-weigh the evidence but, rather,
18 must presume that the trier of fact resolved any conflicts in favor of the prosecution.
19 Petitioner objects maintaining there is no conflict concerning the context of the call.
20 Petitioner argues the only conflict is the victim’s testimony which he describes as
21 “varying.” He maintains the evidence demonstrates Petitioner made many unanswered
22 calls to the victim because he wanted to see his child and the victim knew Petitioner would
23 become angry when she did not answer his calls. He also maintains the evidence
24 demonstrates they were miles apart when Petitioner made the call and the physical
25 separation supports the unreasonableness of a fear of immediate threat of great bodily
26 harm. Additionally, Petitioner points to the evidence that the call concluded with a
27 discussion about his visitation with his daughter and that he denied he intended to harm the
28 victim when questioned by Officer Ochab. Petitioner also contends the victim was fearful
1 of losing her child if Child Protective Services (“CPS”) found out she had contact with
2 Petitioner rather than fear Petitioner was coming to harm her. In support, he points to
3 evidence that CPS visited her earlier in the day and she was told she could have no contact
4 with Petitioner. Petitioner further contends the victim had an agenda, in that she wanted
5 Petitioner to register their daughter with his Indian tribe to receive monetary benefits but
6 Petitioner failed to do so. He also maintains the victim later re-initiated a relationship with
7 Petitioner. He argues the undisputed context demonstrates his words in the telephone call
8 were not a punishable criminal threat because, in context, they were not so unequivocal or
9 unconditional as to convey a gravity of purpose and immediacy of execution.
10 In addition to the evidence Petitioner relies upon, there is testimony and evidence
11 that supports that his threatening statement conveyed an immediate prospect of execution
12 of the threat to the victim and put her in sustained fear for her safety or that of her family.
13 The victim testified she wanted the police officer to escort her home because she was
14 concerned Petitioner may show up and could become violent based upon the threat and the
15 history of violence during their relationship. Lodg. 2, RT v. 8 184:3-186:19 (Doc. No. 10-
16 10). Additionally, the Court agrees that whether the victim had a sustained fear for her
17 safety in light of the 10-mile distance between she and Petitioner at the time of the call
18 goes to the weight of the evidence.
19 This Court agrees with Judge Crawford’s reliance on the direction in Jackson that a
20 court reviewing a federal habeas petition “must presume - even if it does not affirmatively
21 appear in the record - that the trier of fact resolved any such conflicts in favor of the
22 prosecution, and must defer to that resolution.” 443 US at 326. Petitioner asks the Court
23 to utilize an alternate due process analysis in resolving conflicts in the evidence. Relying
24 on court decisions from the First, Second, Fifth, Seventh and Eleventh circuits, Petitioner
25 contends after viewing the evidence in the light most favorable to the verdict, this Court
26 should reverse the conviction if the evidence gives equal circumstantial support to a theory
27 of guilt and a theory of innocence, because a reasonable jury must necessarily entertain a
28
1 reasonable doubt. As noted by Petitioner, the Ninth Circuit does not utilize this alternate
2 analysis and this Court is not persuaded that this analysis is proper on this habeas review.
3 The Court also agrees with and adopts Judge Crawford’s recommendation that this
4 Court should reject Petitioner’s contention that his claim be reviewed outside of AEDPA
5 deference. Petitioner maintains the Court of Appeal’s ruling is not entitled to AEDPA
6 deference because it omitted facts and misinterpreted facts essential to evaluation of the
7 sufficiency of the evidence. However, as discussed above, the Court of Appeal opinion is
8 not contrary to clearly established Supreme Court law and does not involve an
9 unreasonable application of clearly established Supreme Court law. Furthermore, the
10 Court agrees with Judge Crawford’s determination that there is sufficient evidence to
11 support the verdict even without the deference required by AEDPA.
12 Accordingly, Petitioner’s objections are OVERRULED. The Court ADOPTS the
13 Report and DENIES the petition.
14 II. Certificate of Appealability
15 Pursuant to Rule 11 of the Rules following 28 U.S.C. section 2254, which was
16 amended effective December 1, 2009, a district court now “must issue or deny a certificate
17 of appealability when it enters a final order adverse to the applicant.” A state prisoner may
18 not appeal the denial of a section 2254 habeas petition unless he obtains a certificate of
19 appealability from a district or circuit judge. 28 U.S.C. § 2253(c)(1)(A); see also United
20 States v. Asrar, 116 F.3d 1268, 1269–70 (9th Cir. 1997) (holding that district courts retain
21 authority to issue certificates of appealability under AEDPA). A certificate of appealability
22 is authorized “if the applicant has made a substantial showing of the denial of a
23 constitutional right.” 28 U.S.C. § 2253(c)(2). To meet this threshold showing, petitioner
24 must show: (1) the issues are debatable among jurists of reason, (2) a court could resolve
25 the issues in a different manner, or (3) the questions are adequate to deserve encouragement
26 to proceed further. Lambright v. Stewart, 220 F.3d 1022, 1024–25 (9th Cir. 2000) (citing
27 Slack v. McDaniel, 529 U.S. 473 (2000)).
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1 The Court finds no issues are debatable among jurists of reason. This Court further
2 ||finds no issues could be resolved in a different manner. Lastly, this Court finds no
3 || questions are adequate to deserve encouragement to proceed further. Accordingly, this
4 ||Court DENIES Petitioner a certificate of appealability.
5 CONCLUSION AND ORDER
6 Based on the foregoing, IT IS HEREBY ORDERED:
7 l. Petitioner’s objections to the Magistrate Judge’s report and
8 recommendation are OVERRULED.
9 2. The Magistrate Judge’s report and recommendation is ADOPTED.
10 3. The petition is DENIED in its entirety.
11 4. Petitioner is DENIED a certificate of appealability.
12 |}DATED: June 3, 2021
13
14 J A. HOUSTON
15 Ynited States District Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10083790. Public record. Not legal advice.