(HC) Morales v. Covello

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 SONNY JAMES MORALES, Case No. 1:20-cv-00894-KES-HBK (HC)

12 Petitioner, FINDINGS AND RECOMMENDATIONS TO

DENY PETITIONER’S PETITION AND

13 v. DECLINE TO ISSUE A CERTIFICATE OF

APPEALABILITY 1

14 A. COVELLO,

FOURTEEN-DAY OBJECTION PERIOD

15 Respondent.

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18 I. STATUS

19 Petitioner Sonny James Morales (“Petitioner” or “Morales”), a state prisoner, is

20 proceeding pro se on his Petition for Writ of Habeas Corpus filed under 28 U. S.C. § 2254 on

21 June 29, 2020. (Doc. No. 1, “Petition”). Petitioner challenges his judgement of conviction after a

22 jury trial for: (1) child abuse in violation of Penal Code § 273a(a) and (2) corporal injury to a

23 child in violation of Penal Code § 273d(a), for which he was sentenced by the Fresno County

24 Superior Court to an aggregate term of twenty-one years, consisting of the upper term of six years

25 on count 1, doubled pursuant to the “Three Strikes” law, plus four years for the Section

26 12022.7(d) great bodily injury enhancement and five years for the prior serious felony.2 (Case

27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302

(E.D. Cal. 2022).

28 2 Sentence for count 2 was stayed pursuant to section 654 and the court struck the two prior prison term

1 No. F14907189). (Doc. No. 19-1; Doc. No. 19-8 at 2).3 The Fifth Appellate District Court

2 remanded the matter to the trial court to permit it to consider striking appellant’s prior serious

3 felony enhancement, but otherwise affirmed Morales’s judgment on direct appeal (Case No.

4 F073064). (Doc. No. 19-8 at 24). On April 10, 2019, the California Supreme Court summarily

5 denied Morales’s petition for review (Case No. S253609). (Doc. No. 19-10).

6 The Petition presents one ground for relief: insufficient evidence to support conviction.

7 (Doc. No. 1 at 5). The Petition is otherwise devoid of any facts, instead directing the reader to

8 “see attached.” (Id.). Attached to the Petition are two documents: (1) the Fifth Appellate District

9 Court’s January 9, 2019 Opinion (Id. at 16-39); and (2) a Motion to Stay. (Id. at 40-46, Doc. No.

10 7 (refiling duplicate motion to stay)). The Court previously addressed and denied Petitioner’s

11 Motion to Stay on December 15, 2020. (Doc. Nos. 9, 11).

12 Thereafter, Respondent filed an Answer (Doc. No. 18), arguing the sole ground for relief

13 is without merit, and lodged the state court record in support (Doc. No. 19, 19-1 through 19-25).

14 Petitioner elected not to file a reply. This matter is deemed submitted on the record before the

15 Court. After careful review of the record and applicable law, the undersigned recommends the

16 district court deny Petitioner relief on the sole ground of his Petition and decline to issue a

17 certificate of appealability.

18 II. GOVERNING LEGAL PRINCIPLES

19 A. Evidentiary Hearing

20 In deciding whether to grant an evidentiary hearing, a federal court must consider whether

21 such a hearing could enable an applicant to prove the petition's factual allegations, which, if true,

22 would entitle the applicant to federal habeas relief.” Schriro v. Landrigan, 550 U.S. 465, 474

23 (2007). “It follows that if the record refutes the applicant's factual allegations or otherwise

24 precludes habeas relief, a district court is not required to hold an evidentiary hearing.” Id. Here,

25 the state courts adjudicated Petitioner’s sole claim for relief on the merits. Petitioner does not

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27 enhancements. (Case No. F14907189). (Doc. No. 19-8 at 2).

3 All citations to the pleadings and record are to the page number as it appears on the Case Management

28 and Electronic Case Filing (“CM/ECF”) system.

1 seek an evidentiary hearing, and this Court finds that the pertinent facts of this case are fully

2 developed in the record before the Court; thus, no evidentiary hearing is required. Cullen v.

3 Pinholster, 563 U.S. 170 (2011).

4 B. ADEPA General Principles

5 A federal court’s statutory authority to issue habeas corpus relief for persons in state

6 custody is set forth in 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death

7 Penalty Act of 1996 (AEDPA). AEDPA requires a state prisoner seeking federal habeas relief to

8 first “exhaus[t] the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). If

9 the state courts do not adjudicate the prisoner’s federal claim “on the merits,” a de novo standard

10 of review applies in the federal habeas proceeding; if the state courts do adjudicate the claim on

11 the merits, then the AEDPA mandates a deferential, rather than de novo, review. Kernan v.

12 Hinojosa, 136 S. Ct. 1603, 1604 (2016). This deferential standard, set forth in § 2254(d), permits

13 relief on a claim adjudicated on the merits, but only if the adjudication:

14 (1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

15 determined by the Supreme Court of the United States; or

16 (2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the

17 State court proceeding.

18 28 U.S.C. § 2254(d). This standard is both mandatory and intentionally difficult to satisfy.

19 Sexton v. Beaudreaux, 138 S. Ct. 2555, 2558 (2018); White v. Woodall, 572 U.S. 415, 419 (2014).

20 “Clearly established federal law” consists of the governing legal principles in the

21 decisions of the United States Supreme Court when the state court issued its decision. White, 572

22 U.S. at 419. Habeas relief is appropriate only if the state court decision was “contrary to, or an

23 unreasonable application of,” that federal law. 28 U.S.C. § 2254(d)(1). A decision is “contrary

24 to” clearly established federal law if the state court either: (1) applied a rule that contradicts the

25 governing law set forth by Supreme Court case law; or (2) reached a different result from the

26 Supreme Court when faced with materially indistinguishable facts. Mitchell v. Esparza, 540 U.S.

27 12, 16 (2003).

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1 A state court decision involves an “unreasonable application” of the Supreme Court’s

2 precedents if the state court correctly identifies the governing legal principle, but applies it to the

3 facts of the petitioner’s case in an objectively unreasonable manner, Brown v. Payton, 544 U.S.

4 133, 134 (2005), or “if the state court either unreasonably extends a legal principle from

5 [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to

6 extend that principle to a new context where it should apply.” Williams v. Taylor, 529 U.S. 362,

7 407, (2000). “A state court’s determination that a claim lacks merit precludes federal habeas

8 relief so long as fair-minded jurists could disagree on the correctness of the state court’s

9 decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011). The petitioner must show that the

10 state court decision “was so lacking in justification that there was an error well understood and

11 comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.

12 When reviewing a claim under § 2254(d), any “determination of a factual issue made by a

13 State court shall be presumed to be correct[,]” and the petitioner bears “the burden of rebutting

14 the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); Burt

15 v. Titlow, 571 U.S. 12, 18 (2013) (“[A] state-court factual determination is not unreasonable

16 merely because the federal habeas court would have reached a different conclusion in the first

17 instance.”) (quoting Wood v. Allen, 558 U.S. 290, 293 (2010)).

18 Even if a petitioner meets AEDPA's “difficult” standard, he must still show that any

19 constitutional error had a “substantial and injurious effect or influence” on the verdict. Brecht v.

20 Abrahamson, 507 U.S. 619, 637 (1993). As the Supreme Court recently explained, while the

21 passage of AEDPA “announced certain new conditions to [habeas] relief,” it didn't

22 eliminate Brecht’s actual-prejudice requirement. Brown v. Davenport, ––– U.S. ––––, 142 S. Ct.

23 1510, 1524, 212 L.Ed.2d 463 (2022). In other words, a habeas petitioner must satisfy Brecht,

24 even if AEDPA applies. See id. at 1526 (“[O]ur equitable precedents remain applicable ‘whether

25 or not’ AEDPA applies.”) (citing Fry v. Pliler, 551 U.S. 112, 121 (2007)). In short, a “federal

26 court must deny relief to a state habeas petitioner who fails to satisfy either [Brecht] or AEDPA.

27 But to grant relief, a court must find that the petition has cleared both tests.” Id. at 1524.

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1 As discussed supra, for the deferential § 2254(d) standard to apply there must have been

2 an “adjudication on the merits” in state court. An adjudication on the merits does not require that

3 there be an opinion from the state court explaining the state court’s reasoning. Richter, 562 U.S.

4 at 98. “When a federal claim has been presented to a state court and the state court has denied

5 relief, it may be presumed that the state court adjudicated the claim on the merits in the absence

6 of any indication or state-law procedural principles to the contrary.” Id. at 99. “The presumption

7 may be overcome when there is reason to think some other explanation for the state court’s

8 decision is more likely.” Id. at 99-100. This presumption applies whether the state court fails to

9 discuss all the claims or discusses some claims but not others. Johnson v. Williams, 568 U.S.

10 289, 293, 298-301 (2013).

11 While such a decision is an “adjudication on the merits,” the federal habeas court must

12 still determine the state court’s reasons for its decision in order to apply the deferential standard.

13 When the relevant state-court decision on the merits is not accompanied by its reasons,

14 the federal court should “look through” the unexplained decision to

the last related state-court decision that does provide a relevant

15 rationale. It should then presume that the unexplained decision

adopted the same reasoning. But the State may rebut the

16 presumption by showing that the unexplained affirmance relied or

most likely did rely on different grounds than the lower state court’s

17 decision, such as alternative grounds for affirmance that were

briefed or argued to the state supreme court or obvious in the record

18 it reviewed.

19 Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The federal court “looks through” the silent state

20 court decision “for a specific and narrow purpose—to identify the grounds for the higher court’s

21 decision, as AEDPA directs us to do.” Id. at 1196.

22 III. RELEVANT FACTUAL BACKGROUND

23 The Court adopts the pertinent facts of the underlying offenses, as summarized by the

24 California Fifth District Court of Appeal. A presumption of correctness applies to these facts.

25 See 28 U.S.C. § 2254(e)(1); Crittenden v. Chappell, 804 F.3d 998, 1010-11 (9th Cir. 2015).

26 Factual and Procedural Background

27 The Appellant married Irene S.[FN2] on July 13, 2014. Irene had

two small children, M. and F. They all lived with appellant in an

28 apartment. In the early hours of July 29, 2014, F.’s feet and ankles

1 were severely burned by scalding water. As discussed below, the

mechanism of F.’s injuries was disputed.

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[FN2] To protect the identity of the minor children, we refer

3 to their mother only by her first name. For the same reason,

we refer to the minors only by their first initials. No

4 disrespect is intended.

5 A. F.'s Injuries

6 At about 2:50 a.m. on July 29, 2014, F. was examined by Dr.

Lawrence Satkowiak, medical director for the emergency room at

7 Valley Children’s Hospital. Dr. Satkowiak was qualified at trial as

an expert in emergency pediatric medicine.

8

Irene reported to Dr. Satkowiak that she and appellant awoke in the

9 night to find F. standing in a sink of hot water. Dr. Satkowiak

found that F.’s feet were burned in a “stocking glove pattern,”

10 meaning that the feet were completely burned from the ankles

downward. The burn lines were well defined and sharply

11 demarcated on both ankles at the same level. There were no splash

marks on either leg. There was no area on the feet that was spared

12 from the burns. Dr. Satkowiak explained that sparing occurs when

parts of the skin are exposed to a lower temperature. This can

13 occur if someone stands in a tub of freshly placed hot water,

because the tub itself has not yet elevated to the same temperature

14 as the water.

15 Dr. Satkowiak stated that F’s injuries were indicative of “non-

accident trauma or inflicted injury.” Specifically, the clear

16 demarcation lines and lack of splashing indicated that F. did not

fight back or try to jump out of the water. The injuries were

17 inconsistent with F. accidentally dipping his feet in scalding water,

standing in a sink of water, or sitting in a sink basin with water

18 running into the sink. Dr. Satkowiak stated it would be unusual for

burns like this to result from someone accidentally putting their feet

19 in hot water because most people would immediately step out of the

water. Such conduct would likely result in splash burns, which F.

20 did not have. Instead, the injuries were likely caused by an adult

dunking F. in very hot water. Dr. Satkowiak explained:

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“This injury is really a classic injury we see. It is

22 one of the reasons, when he came in, I immediately

felt we needed to get the police involved. It’s an

23 injury that we see where a child is dunked into hot

water, their feet are held there sustaining that burn.

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“You would need to have their—the foot in the water

25 for an amount of time, depending on how hot the

water is, to cause . . . a burn like this.”

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Dr. Satkowiak opined that a child the size of M., who was 34

27 months old, weighed 31.8 pounds, and was 37 inches tall, could not

have caused the injuries to F., who weighed 30 pounds. Dr.

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1 Satkowiak acknowledged that F. had no injuries to indicate he was

held down or resisted.

2

Later that day, F. was transferred to the burn center at Community

3 Regional Medical Center, where he was seen by Dr. William

Dominic. F. had deep second-degree burns on both feet extending

4 up to the ankle that were almost mirror images of each other. The

burns were consistent with a scalding injury. The tops and bottoms

5 of both feet were equally burned and there was a sharp line of

demarcation on each leg. Dr. Dominic explained that the

6 demarcation lines indicated F. was immobile at the time he was

burned. Otherwise, Dr. Dominic would expect splash marks or an

7 uneven burn. Based on these factors, Dr. Dominic opined that the

injuries were “most likely” caused by F.’s lower extremities being

8 immobilized by someone holding them. He stated the “most likely

scenario” was that an adult held F. and dunked him in a scalding

9 hot substance. Dr. Dominic acknowledged that F. had no other

injuries but stated it was nonetheless possible he was restrained

10 without suffering any bruises. He opined that it was “highly, highly

unlikely” that M. could have caused the injuries. He also believed it

11 was “highly unlikely” that F.’s injuries were accidental.

12 If F. had been standing in a level of water, Dr. Dominic would

expect to find sparing on the bottoms of the feet, where they had

13 touched the bottom of the sink. However, Dr. Dominic saw no

sparing on F.’s feet. If F. had been sitting in the sink basin with

14 water running out of the faucet and down the drain, Dr. Dominic

would expect to see a ring mark or line of burn along F.’s leg or

15 buttocks, and those portions of the body that were against the sink

might not have burned. Dr. Dominic stated that a burn could occur

16 within 5 to 20 seconds of exposure to water at 145 degrees. At 140

degrees, the time might be slightly longer, but still within seconds.

17 At 150 degrees, a burn would occur in under five seconds. At 155

degrees, a burn would occur within a second or so.

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B. The Investigation

19

Detective Joshua Alexander interviewed appellant on the morning

20 on July 29, 2014, at the Fresno Police Department. Appellant

stated that he heard knocking and came out of his room. He saw a

21 mess in the living room. The kids had stacked a child's table and

chairs to get up to the kitchen counter. M. got off the table and her

22 shirt was wet. F. was sitting in the sink. Water was running and F.

was playing with the water. He was not crying. The other side of

23 the sink had dishes in it. The kids had clothes on when they went to

sleep but, by this point F. was wearing only a shirt and a diaper. F.

24 takes his clothes off in the middle of the night.

25 Appellant pulled F. from the sink. Appellant tried to put F. down

but F. complained. Appellant took F. to Irene in the bedroom and

26 went to start cleaning up. F. was not screaming and appellant did

not know there was a problem until Irene called him back to the

27 room. They called for a ride to the hospital right away. At some

point, their neighbor, Shawn, came by. Irene's uncle took them to

28 the hospital. They stopped on the way to get milk for M. F. was

1 crying on and off at that point. Appellant stated either F. or M. had

to have caused the injuries.

2

An emergency response social worker for Fresno County

3 Department of Children and Family Services interviewed appellant

on July 30, 2014, at the Fresno County Jail. Appellant stated that

4 he awoke in the night to use the restroom and inadvertently closed

the bedroom door when he returned to bed. Irene usually kept the

5 door open to hear the kids. Appellant later woke up again and

thought he heard knocking. He got up and found items from the

6 kitchen cupboards scattered around the kitchen and living room.

M. came running out of the kitchen screaming with her hands over

7 her ears. She looked like she thought she was going to get in

trouble. F. was squatting in the kitchen sink playing. Appellant

8 thought the water was dribbling out of the sink. He touched the

water but did not remember it being warm. He took F. to Irene in

9 the bedroom. Irene started screaming, asking what happened to F.’s

feet. Irene and appellant eventually took F. to the hospital.

10

Detective Alexander also interviewed Irene. Irene stated that

11 appellant has a short temper and calls her a “lazy bitch,”

particularly when she sleeps all day, as she did on the day of the

12 incident. Appellant also gets mad when the children make a mess.

The week before this incident, appellant had gotten physical with

13 her and she called 911. When the police came, she denied that

anything had happened because she did not want appellant to get in

14 trouble. The 911 call was admitted into evidence and played for the

jury.

15

Law enforcement officials, including Detective Alexander, visited

16 the apartment. The apartment was filthy and had a disturbing

stench. The carpet was stained and bird feces were on the carpet.

17 Fly strips filled with flies hung from the ceiling. There were

cockroaches and flies throughout the residence. Numerous

18 cockroaches around the sink appeared to be eating skin tissue. One

side of the sink contained a stack of dishes and a pair of pajama

19 bottoms. The pajamas were wet and it appeared they would fit F.

Two large pieces of skin were found on the bottom of the sink

20 under the dishes. Smaller pieces of skin were on the other side of

the sink. The skin appeared to have come from a person’s feet.

21 Detective Alexander found a water-soaked diaper in the restroom

trash can.

22

A child’s table and chair were located near the regular kitchen

23 table. Officers moved the child’s table and chair next to the sink to

determine their height relationship to the sink. The counter in the

24 kitchen was 37 and three-eighth inches tall. The child’s table was

17 and one-half inches tall and the seat of the chair was 10 and one-

25 fourth inches tall. The water heater was in the northwest corner of

the kitchen and its thermostat was set to the maximum, hot position.

26 Two water temperature tests were performed. In the first test, the

water tested at 10 seconds was 60 degrees. After 40 seconds, it was

27 100 degrees. After 90 seconds, it was 145 degrees, which was the

peak temperature. The temperature of water from the bathtub

28 faucet ranged from 125 degrees after 10 seconds to 155 degrees

1 after 60 seconds. In the second test, the water from the kitchen sink

was 65 degrees after 10 seconds. At 20 seconds, it was 100

2 degrees. At 40 seconds, it was 125 degrees. At 60 seconds, it was

140 degrees. The bathroom sink temperature peaked at 155

3 degrees, as did the bathtub faucet.

4 Detective Alexander attempted to speak with appellant’s neighbor,

Shawn. Shawn began to speak with Alexander but then his cell

5 phone rang and he walked away. Shawn received a call from

appellant, who was in jail. Appellant asked Shawn if a crime scene

6 unit was at the apartment, and Shawn responded that he was

speaking with an investigator. Appellant informed Shawn, “I told

7 them that you knocked on the door and all that . . . .” He also

stated, “I told them I heard knocking I left the door open and I went

8 to get the baby and so I notice that baby was, well he was burning

and that's when you walked in.” After the call, Shawn was less

9 cooperative with Detective Alexander. A specialized interviewer

attempted to interview M., but she did not respond to questions.

10

C. The Defense Case

11

The defense pointed to weaknesses in the circumstantial evidence to

12 argue that F.’s injuries may have been accidental. The defense also

pointed to inconsistencies in statements made by Irene to argue that

13 she may have inflicted the injuries herself.

14 Irene testified that she put M. and F. to bed in their bedroom and

went into her own bedroom to watch a movie with appellant. Both

15 kids were wearing pajamas and F. also was wearing a diaper. Irene

fell asleep before appellant.

16

Irene was later awakened by appellant shaking her and stating that

17 M. and F. made a mess in the kitchen. Appellant walked out of the

room. He returned a minute or two later holding F. F. was not

18 making any noise. His feet were “bloodshot red.” He had no skin

on his feet. Irene jumped out of bed and started “freaking out” on

19 appellant. Appellant said he had “no clue” what happened. Irene

called her sister and uncle for a ride to the hospital. About five

20 minutes later, Shawn came over and put aloe vera on F.’s feet.

21 While waiting for a ride, Irene cleaned up the kitchen. The child’s

table was pushed against the sink with the child's chair on top.

22 There was typewriter ink everywhere and food from the refrigerator

was out. She did not clean up the sink area. In one side of the sink

23 was a stack of dishes with F.’s diaper on top. In the other side of

the sink, Irene saw F.’s skin and she placed a dish on top because

24 she knew the police would be called. She did not call 911 because

she had been told by 911 operators that they would not respond to

25 her house due to a history of false calls.

26 M. and F. had a history of making messes in the kitchen, but not

late at night. They climbed on things, but not in the kitchen.

27 Neither F. nor M. had ever played with the sink before. They know

how to turn on the bathtub but do not “mess with” the sink.

28

1 After about 45 minutes, Irene’s uncle came and took them to the

hospital. They stopped on the way to purchase milk for M.

2

Prior to trial, Irene gave several statements regarding the incident,

3 some of which were inconsistent with her trial testimony. For

example, Irene told the first responding officer that she and

4 appellant both heard screaming and went to the kitchen to find both

children on the kitchen counter, with F.’s feet in a sink of hot water.

5 She also initially stated that they proceeded directly to the hospital,

then stated in another interview that they stopped for gas. In one

6 interview, she stated that her kids never wear pajamas, and that they

had played in the sink before. At various times, she stated that

7 appellant had blocked her phone from calling 911 or that appellant

had told her not to call 911. At one point, Irene stated that she and

8 appellant had been married two years. At another point, she stated

that they had been married for four or five months. In yet another

9 interview, she could not recall whether they had married in June or

July of 2014.

10

11 (Doc. No. 19-8 at 3-9).

12 IV. ANALYSIS

13 Respondent acknowledges that Petitioner’s single ground for relief was raised on direct

14 appeal to the Fifth Appellate District Court, denied on the merits (Doc. No. 19-8), subsequently

15 raised, and summarily denied by the California Supreme Court (Doc. No. 19-10). Petitioner

16 alleges, without supporting facts in the Petition itself, that there was insufficient evidence to

17 support his convictions. (Doc. No. 1 at 5). Presumably in support of this claim, Petitioner seeks

18 to raise the same grounds that were addressed and ultimately rejected by the Fifth Appellate

19 District. (Id. at 16-39). Therein, Petitioner argued that the circumstantial evidence was not strong

20 enough to eliminate the possibility that F.’s injuries may have been accidental, and that

21 inconsistencies in Irene’s statements suggest that she may have inflicted the injuries rather than

22 Petitioner. (Id. at 23).

23 A. Insufficient Pleading

24 Initially, Petitioner’s Petition is insufficient to provide a sufficient a basis for federal

25 habeas relief. Rule 2(c) of the Rules Governing Section 2254 Cases states that a federal habeas

26 petition must specify all grounds for relief and “state the facts supporting each ground.” Rule

27 2(c) requires specific pleading of facts that, if proven to be true, would entitle the petitioner to

28 federal habeas relief. While pro se pleadings are given the benefit of liberal construction, a

1 federal court is not required to construct legal arguments for a pro se petitioner. See Haines v.

2 Kerner, 404 U.S. 519, 520-521 (1972); see also Small v. Endicott, 998 F.2d 411, 417-418 (7th

3 Cir. 1993). Claims based on conclusory allegations are not a sufficient basis for federal habeas

4 relief. See Mayle v. Felix, 545 U.S. 644, 655-56, (2005) (acknowledging that notice pleading is

5 insufficient to satisfy the specific pleading requirement for federal habeas petitions); James v.

6 Borg, 24 F.3d 20, 26 (9th Cir. 1994) (“[C]onclusory allegations which are not supported by a

7 statement of specific facts do not warrant habeas relief.”); see also Blackledge v. Allison, 431

8 U.S. 63, 74, (1977). Pro se petitioners may incorporate claims by reference when the petition

9 includes specific references to a document that is attached to the federal petition. Dye v.

10 Hofbauer, 546 U.S. 1, (2005) (per curium) (applying Fed. R. Civ. P. 10(c) in habeas proceeding);

11 See also Bowles v. Baca, 2020 WL 7240097, at *10-11 (D. Nev., Dec. 9, 2020) (“However, there

12 is no authority permitting a federal habeas petitioner to incorporate claims from documents not

13 attached to the petition.”).

14 As noted, here, the Petition refers the reader to “see attached.” (Doc. No. 1 at 5). The

15 Court liberally construes this directive as an incorporation to the insufficiency claim raised on

16 direct appeal and rejected by the Fifth Appellate District Court (case No. F073064). The Fifth

17 Appellate District’s decision does make brief reference to the insufficient evidence claims

18 Petitioner brought before the state courts. (Doc. No. 19-8 at 8-9). The decision notes that, in

19 arguing for his defense, Petitioner “pointed to weaknesses in the circumstantial evidence to argue

20 that F.’s injuries may have been accidental,” as well as “inconsistencies in statements made by

21 Irene to argue that she may have inflicted the injuries herself.” (Id. at 8). The Petition, however,

22 does not incorporate any briefs submitted to the state courts which explain what weaknesses

23 Petitioner identified in the circumstantial evidence, or which statements made by Irene may

24 suggest she inflicted the injuries on F. herself. As noted above, there is no authority permitting a

25 federal habeas petitioner to incorporate claims from documents not attached to the petition.

26 Bowles, 2020 WL 7240097, at *11. Further, Petitioner does not identify how the state court’s

27 decision was contrary to, or an unreasonable application of clearly established federal law. Nor

28 does Petitioner contend that the facts upon which the state court relied were unreasonable.

1 Consequently, the Petition lacks specific pleading of facts that, if proven to be true, would

2 entitle the petitioner to federal habeas relief as required by Rule 2(c) of the Rules Governing

3 Section 2254 Cases. On this basis alone, the district court may dismiss the Petition.

4 B. Merits Analysis

5 In the alternative and given that Respondent has not objected to the deficiencies in the

6 pleadings, the undersigned will consider Petitioner’s insufficient evidence claim on the merits to

7 the extent it was exhausted on direct appeal. Respondent argues that the state appeal court’s

8 denial of Petitioner’s claim, which was undisturbed by the California Supreme Court, was not

9 contrary to, nor an unreasonable application of, federal law. (Doc. No. 18 at 13-16 (citing Doc.

10 No. 19-8 at 10-12)). Respondent contends that the state court reasonably rejected Petitioner’s

11 arguments. (Doc. No. 18 at 13).

12 1. State Court Decision

13 In denying Petitioner’s insufficiency claim, the Fifth Appellate District court found as

14 follows:

15 A. Standard of Review

16 As relevant here, a person is guilty of child abuse under section

273a, subdivision (a) when the person “having the care or custody

17 of any child, willfully causes or permits the person or health of that

child to be injured.” (§ 273a, subd. (a).) Section 273d, subdivision

18 (a), applies to anyone who “willfully inflicts upon a child any cruel

or inhuman corporal punishment or an injury resulting in a

19 traumatic condition.” (§ 273d, subd. (a).) The sentencing

enhancement for infliction of great bodily injury requires proof that

20 the defendant personally inflicted great bodily injury on a child

under the age of five years. (§ 12022.7, subd. (d).)

21

“It is the prosecution’s burden in a criminal case to prove every

22 element of a crime beyond a reasonable doubt.” (People v. Cuevas

(1995) 12 Ca1.4th 252, 260.) When reviewing a challenge to the

23 sufficiency of the evidence, “we review the whole record in the

light most favorable to the judgment to determine whether it

24 discloses substantial evidence—that is, evidence that is reasonable,

credible, and of solid value—from which a reasonable trier of fact

25 could find the defendant guilty beyond a reasonable doubt.”

(People v. Cravens (2012) 53 Cal.4th 500, 507.) “ ‘The focus of

26 the substantial evidence test is on the whole record of evidence

presented to the trier of fact, rather than on “ ‘isolated bits of

27 evidence.’ ” ’ ” (People v. Medina (2009), 46 Cal.4th 913, 919.)

“We must presume in support of the judgment the existence of

28 every fact that the trier of fact could reasonably deduce from the

1 evidence.” (Ibid. ) “The conviction shall stand unless it appears

“that upon no hypothesis whatever is there sufficient substantial

2 evidence to support [the conviction].” ’ ” (Cravens, at p. 508.)

3 The standard of review is the same in cases in which a conviction is

based primarily on circumstantial evidence. (People v. Clark

4 (2016) 63 Cal.4th 522, 625 (Clark).) “In a case built solely on

circumstantial evidence, none of the individual pieces of evidence

5 ‘alone’ is sufficient to convict. The sufficiency of the individual

components, however, is not the test on appeal.” (People v. Daya

6 (1994) 29 Ca1.App.4th 697, 708.) Rather, we must determine

“whether a reasonable trier of fact, considering the circumstantial

7 evidence cumulatively, could have found the defendant guilty . . .

beyond a reasonable doubt.” (Id. at p. 709.) “We ‘must accept

8 logical inferences that the jury might have drawn from the

circumstantial evidence.’ ” (People v. Zamudio (2008) 43 Cal.4th

9 327, 357; Clark, at p. 625.)

10 B. Analysis

11 Appellant contends that expert testimony regarding the cause of

F.’s burns is too insubstantial to support a determination of guilt

12 beyond a reasonable doubt. He points out that Dr. Satkowiak did

not know what water temperature F. was exposed to and could not

13 opine on the reaction time of a child. He points to Dr. Dominic’s

testimony that burns could occur within seconds at the sink’s peak

14 water temperature of 140 or 145 degrees, and the lack of injuries on

either F. or appellant, to undermine the doctors’ theory that F. was

15 restrained. We conclude the evidence was sufficient to support the

judgment.

16

Drs. Satkowiak and Dominic both opined that F.’s injuries were

17 consistent with nonaccidental injuries caused by an adult

immobilizing F.’s feet in hot water. They reached this conclusion

18 based on the nature of F.’s injuries, specifically the sharp

demarcation lines, even burns, lack of splash marks, and lack of

19 sparing. Although they were unable to state their conclusions with

absolute certainty, Dr. Satkowiak described this as a “classic

20 injury” that occurs “where a child is dunked into hot water, their

feet are held there sustaining that burn.” Dr. Dominic

21 acknowledged the “highly unlikely” possibility of accidental injury

but stated the “most likely scenario” was an adult holding and

22 dunking F. in a scalding hot substance. Dr. Dominic also explained

that it is possible to immobilize a child without that child suffering

23 any bruises. Additionally, Drs. Satkowiak and Dominic testified

that the conduct described by appellant and Irene—that F. was

24 either standing in a sink of hot water or sitting in the sink with

water running down the drain—was not consistent with the injuries

25 sustained.

26 Furthermore, the jury heard testimony that appellant had a history

of becoming angry over Irene’s laziness and the children making

27 messes. Appellant awoke in the night to find the children had made

a mess, he advised Irene of the mess, and he returned shortly

28 thereafter with F. whose feet were severely burned. Cumulatively,

1 the testimony is sufficient for the jury to have drawn a logical

inference that F.’s injuries were not accidental, but instead were

2 caused by appellant, the only adult purported to be with F. at the

time the injuries occurred.

3

The primary case relied on by appellant, People v. Bassett (1968)

4 69 Ca1.2d 122, is distinguishable. There, a jury found the

defendant guilty on two counts of first degree murder, impliedly

5 finding that the defendant had sufficient mental capacity to

premeditate the murders. (Id. at p. 124.) This finding rested on the

6 testimony of three expert psychiatrists presented by the prosecution.

(Id. at pp. 136-137.) The Supreme Court reversed, finding the

7 prosecution had not sustained its burden of proof. Two of the

prosecution’s psychiatrists rendered their opinions without having

8 examined the defendant. (Id. at pp. 144-146.) Their testimony was

held insubstantial because they adduced no reasoning in support of

9 their conclusions and did not attempt to refute the extensive defense

evidence to the contrary. (Ibid.) The opinion of the third

10 psychiatrist, who had personally examined the defendant, was held

insubstantial because it revealed that he labored under a

11 misunderstanding of the term “premeditation.” (Id. at pp. 146--

149.)

12

Unlike in Bassett, a solid foundation was established for the

13 testimony offered in this case. The doctors examined F. and based

their opinions on that examination. The reasoning behind their

14 conclusions was explained to the jury. Both doctors addressed and

refuted the suggestion of an accidental cause for F.’s injuries.

15 There is nothing to indicate either doctor labored under any legal or

factual misunderstanding. In other words, the type of evidence

16 missing in Bassett was presented in this case.

17 We hold there is sufficient evidence to support appellant’s

convictions.

18

19 (Doc. No. 19-8 at 9-12); People v. Morales, No. F073064

20 2. Governing Federal Law

21 The undersigned reviews the state court’s reasoned decision under the deferential standard

22 of review applying clearly established federal law. The Due Process Clause of the Fourteenth

23 Amendment protects a criminal defendant from conviction “except upon proof beyond a

24 reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re

25 Winship, 397 U.S. 358, 364 (1970). The federal standard for determining the sufficiency of the

26 evidence to support a jury finding is set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Under

27 Jackson, “the relevant question is whether, after viewing the evidence in the light most favorable

28 to the prosecution, any rational trier of fact could have found the essential elements of the crime

1 beyond a reasonable doubt.” Id. at 319 (emphasis in original); see also Coleman v. Johnson, 566

2 U.S. 650, 656 (2012) (“the only question under Jackson is whether that finding was so

3 insupportable as to fall below the threshold of bare rationality”); Cavazos v. Smith, 565 U.S. 1, 2

4 (2011) (a reviewing court “may set aside the jury's verdict on the ground of insufficient evidence

5 only if no rational trier of fact could have agreed with the jury”).

6 The Jackson standard “must be applied with explicit reference to the substantive elements

7 of the criminal offense as defined by state law.” Jackson, 443 U.S. at 324 n.16; Juan H. v. Allen,

8 408 F.3d 1262, 1275-76 (9th Cir. 2005). The reviewing court should look to state law for the

9 elements of the offense and then turn to the federal question of whether any rational trier of fact

10 could have found the essential elements of the crime supported by sufficient evidence beyond a

11 reasonable doubt. See Johnson v. Montgomery, 899 F.3d 1052, 1056 (9th Cir. 2018).

12 Further, when both Jackson and AEDPA apply to the same claim, the claim is reviewed

13 under a “twice-deferential standard.” Parker v. Matthews, 567 U.S. 37, 43 (2012). As noted by

14 the Supreme Court:

15 First, on direct appeal, “it is the responsibility of the jury−not the

court−to decide what conclusions should be drawn from evidence

16 admitted at trial. A reviewing court may set aside the jury's verdict

on the ground of insufficient evidence only if no rational trier of

17 fact could have agreed with the jury.” And second, on habeas

review, “a federal court may not overturn a state court decision

18 rejecting a sufficiency of the evidence challenge simply because the

federal court disagrees with the state court. The federal court

19 instead may do so only if the state court decision was ‘objectively

unreasonable.’ ”

20

21 Coleman, 566 U.S. at 651.

22 Here, the state court, although not citing to Jackson, reasonably determined there was

23 sufficient evidence to support the jury finding Petitioner guilty of violating California Penal Code

24 §§ 273a(a) and 273d(a). California Penal Code § 273a(a) provides that felony child

25 endangerment occurs when, among a variety of other circumstances, there is “child abuse by

26 direct assault.” Duran v. City of Porterville, 2015 WL 3794930, at * 9 (E.D. Cal. June 17, 2015).

27 A jury may find a defendant is guilty of child abuse under section 273(a) when their conduct is

28 (1) willful and (2) committed “under circumstances or conditions likely to produce great bodily

1 harm or death.” Id. (citing People v. Sargent, 19 Cal.4th 1206, 1215-16 (1999)). California Penal

2 Code § 273d(a) prohibits the willful infliction of injury resulting from “a direct application of

3 force by the defendant upon the victim.” Olea-Serefina v. Garland, 34 F.4th 856 (9th Cir. 2022).

4 A jury may find a defendant guilty of violating § 273d(a) when the defendant intentionally

5 applies physical force to the victim that causes a wound. Id.

6 Petitioner does not explain how the state court decision was objectively unreasonable

7 under controlling federal law. There was sufficient evidence for the jury to reasonably conclude

8 that Petitioner caused the burns to F.’s feet, including testimony from two experts that accidental

9 burning was highly unlikely in this case; evidence that the burn lines were straight and without

10 splash marks, indicating that F. did not splash, fight back, or otherwise try to escape the water;

11 testimony that the burn marks were not consistent with a child placing their own feet in scalding

12 water; and evidence that Petitioner was the only adult in the kitchen with F. at the time of the

13 incident. (Doc. Nos. 19-23 at 17:24-18:1; 19-21 at 31:8-32:3; 19-13 at 142:12-25; 19-21 at

14 30:14-25; 19-13 at 143:8-145:6; 19-14 at 176). Experts also testified that F.’s burns were likely

15 the result of someone restraining his legs and holding him in the water, which could be done

16 without causing any bruising. (Doc. Nos. 19-21 at 31:25-32:3; 19-13 at 143:4-7; 19-23 at 13:21-

17 14:4). Dr. Satkowiak, who initially examined F. at the hospital, testified that based on his

18 experience with over 200 burn injuries, he immediately identified F.’s injuries as likely a “non-

19 accident trauma or inflicted injury” which required law enforcement intervention. (Doc. No. 19-

20 21 at 27:20-29:16). The jury also heard evidence from the investigation about Petitioner’s temper

21 when the children made messes, and that Petitioner walked into a mess in the kitchen before F.

22 was burned. (Doc. No. 19-13 at 118:6-17, 126:10-26, 325-236).

23 “Jackson leaves juries broad discretion in deciding what inferences to draw from the

24 evidence presented at trial,” and it requires only that they draw “‘reasonable inferences from basic

25 facts to ultimate facts.’” Coleman v. Johnson, 132 S.Ct. 2060, 2064 (2012) (citation omitted).

26 “‘Circumstantial evidence and inferences drawn from it may be sufficient to sustain a

27 conviction.’” Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995) (citation omitted). Thus, a

28 rational trier of fact could have reasonably relied on the evidence presented to conclude that

1 Petitioner held F. and dunked him in the scalding hot water, causing the burn injuries to F.’s feet

2 to sustain his child abuse and corporal injury convictions. In assessing a sufficiency of the

3 evidence claim, it is not the Court’s role to reweigh the evidence. Cavazos, 565 U.S. at 7 n.*

4 (reweighing of the facts is precluded by Jackson); Nevils, 598 F.3d at 1170.

5 In summary, viewing the evidence in the light most favorable to the prosecution, a rational

6 trier of fact could have found beyond a reasonable doubt that Petitioner inflicted the injuries to F.

7 within the meaning of child abuse and corporal injury to a child as defined by California law. As

8 such, the state court’s rejection of this claim was not contrary to, or an unreasonable application

9 of, clearly established Supreme Court precedent, nor based an unreasonable determination of the

10 facts. The undersigned recommends the sole ground for relief in the Petition be denied.

11 V. CERTIFICATE OF APPEALABIILTY

12 A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district

13 court’s denial of a petition; he may appeal only in limited circumstances. See 28 U.S.C. § 2253;

14 Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing § 2254 Cases requires a

15 district court to issue or deny a certificate of appealability when entering a final order adverse to a

16 petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th

17 Cir. 1997). A certificate of appealability will not issue unless a petitioner makes “a substantial

18 showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires

19 the petitioner to show that “jurists of reason could disagree with the district court’s resolution of

20 his constitutional claims or that jurists could conclude the issues presented are adequate to

21 deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; accord Slack v.

22 McDaniel, 529 U.S. 473, 484 (2000). Because the petitioner has not made a substantial showing

23 of the denial of a constitutional right, the undersigned recommends that the court decline to issue

24 a certificate of appealability.

25 Accordingly, it is RECOMMENDED:

26 1. Petitioner’s Petition for Writ of Habeas Corpus (Doc. No. 1) be denied; and

27 2. Petitioner be denied a certificate of appealability.

28 ////

1 NOTICE TO PARTIES

2 These Findings and Recommendations will be submitted to the United States District

3 | Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days

4 | after being served with a copy of these Findings and Recommendations, a party may file written

5 | objections with the Court. /d.; Local Rule 304(b). The document should be captioned,

6 | “Objections to Magistrate Judge’s Findings and Recommendations” and shall not exceed fifteen

7 | (15) pages. The Court will not consider exhibits attached to the Objections. To the extent a party

8 | wishes to refer to any exhibit(s), the party should reference the exhibit in the record by its

9 | CM/ECEF document and page number, when possible, or otherwise reference the exhibit with

10 || specificity. Any pages filed in excess of the fifteen (15) page limitation may be disregarded by

11 | the District Judge when reviewing these Findings and Recommendations under 28 U.S.C. §

12 | 636(b)d)(C). A party’s failure to file any objections within the specified time may result in the

13 | waiver of certain rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014).

14

| Dated: _ November 25, 2024 Mile. Wh. foareh Zaskth

16 HELENA M. BARCH-KUCHTA

UNITED STATES MAGISTRATE JUDGE

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