The opinion
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10 ANTHONY VIGEANT, ) CASE NO. CV 15-628-GW (PJW)
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11 Petitioner, )
) FINAL REPORT AND RECOMMENDATION
12 v. ) OF UNITED STATES MAGISTRATE JUDGE
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13 JEFF MACOMBER, )
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14 Respondent. )
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15 )
16 This Final Report and Recommendation is submitted to the Hon.
17 George H. Wu, United States District Judge, pursuant to 28 U.S.C.
18 § 636 and General Order 05-07 of the United States District Court for
19 the Central District of California. For the reasons discussed below,
20 it is recommended that the Petition be denied and the action be
21 dismissed with prejudice.1
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1 This Final Report and Recommendation has been issued to
28 address arguments raised by Petitioner in his Objections to the
original Report and Recommendation.
1 I.
2 SUMMARY OF PROCEEDINGS
3 A. State Court Proceedings
4 In July 2009, a jury in Los Angeles County Superior Court found
5 Petitioner guilty of first degree murder with special circumstances,
6 first degree attempted home invasion robbery, and first degree
7 residential burglary. (Clerk’s Transcript (“CT”) 461-63.) The jury
8 also found that a principal was armed with a firearm during the
9 commission of the crimes. (CT 461-63.) The court sentenced him to
10 life in prison without the possibility of parole plus a consecutive
11 term of five years and six months. (CT 506-09.)
12 Petitioner appealed to the California Court of Appeal and
13 concurrently filed a petition for writ of habeas corpus in the same
14 court. (Lodged Doc. Nos. 7, 10, 16.) The appellate court reversed
15 the judgment, but not the conviction, finding that the trial court
16 erred when it denied Petitioner’s post-trial motion to replace his
17 counsel. (Lodged Doc. No. 12.) The case was remanded to the Superior
18 Court with instructions to proceed with new counsel from the point at
19 which Petitioner originally sought to discharge his attorney. (Lodged
20 Doc. No. 12.) The appellate court denied his habeas petition.
21 (Lodged Doc. No. 17.)
22 Petitioner then filed two petitions for review in the California
23 Supreme Court, challenging the California Court of Appeal’s decision
24 in his direct appeal and the denial of his petition for writ of habeas
25 corpus. (Lodged Doc. Nos. 13, 18, 20.) The California Supreme Court
26 summarily denied both petitions. (Lodged Doc. Nos. 15, 21.)
27 On remand, the Los Angeles County Superior Court appointed new
28 counsel. (Lodged Doc. No. 23 at 2.) Petitioner moved for an
1 evidentiary hearing to address whether prior counsel had been
2 ineffective. He also asked the trial court for a new trial, to strike
3 the special circumstances allegation, and to appoint an expert.
4 (Lodged Doc. No. 24.) The court denied the motions and re-sentenced
5 Petitioner to life without the possibility of parole plus a
6 consecutive term of five years and six months. (Lodged Doc. No. 22 at
7 815-19.)
8 Petitioner appealed to the California Court of Appeal, which
9 affirmed the judgment in a written decision. (Lodged Doc. Nos. 25,
10 28.) He then filed a petition for review in the California Supreme
11 Court, which was summarily denied. (Lodged Doc. Nos. 29, 30.)
12 B. Federal Court Proceedings
13 After exhausting his remedies in state court, Petitioner,
14 represented by counsel, filed a Petition for Writ of Habeas Corpus in
15 this court, pursuant to 28 U.S.C. § 2254, claiming that trial counsel
16 was ineffective for failing to hire a neuropsychologist and for
17 failing to investigate co-defendant Ramon Hernandez’s mental
18 condition. (Petition at 5.) Petitioner requested that the Court hold
19 an evidentiary hearing and receive additional evidence to support his
20 claims. (Petition, Attachment at 41; Traverse at 75-76.) That
21 request is denied. Except in exceptional circumstances, which do not
22 exist here, the Court is confined to determining the reasonableness of
23 the state courts’ decisions based solely on the evidence that was
24 before the state courts. See Cullen v. Pinholster, 563 U.S. 170, 180
25 (2011). Further, an evidentiary hearing is not warranted where, as
26 here, “the record refutes [Petitioner’s] factual allegations or
27 otherwise precludes habeas relief[.]” Schriro v. Landrigan, 550 U.S.
28 465, 474 (2007).
1 II.
2 STATEMENT OF FACTS
3 The following statement of facts was taken verbatim from the
4 California Court of Appeal’s opinion affirming Petitioner’s
5 conviction:
6 At [Petitioner’s] trial, Ramon Hernandez testified that
7 he was a charged codefendant in the shooting death of [victim
8 David Pettigrew]. He had pleaded guilty to one count of
9 murder and had admitted the special circumstances that the
10 murder was committed during the course of a residential
11 burglary and during the course of an attempted robbery. He
12 had admitted to the personal use of a firearm and pleaded
13 guilty to the attempted residential robbery and residential
14 burglary counts. He had not yet been sentenced.
15 Hernandez had not been offered any deal or plea bargain
16 and had not asked for one. He pleaded guilty to accept
17 responsibility for his actions. He was not offered any
18 leniency for testifying and had volunteered to testify
19 because “the truth needs to be out there, and everybody has a
20 right to the truth.” He also wanted to bring justice to the
21 victim’s family.
22 Hernandez was a Marine who had done two tours in Iraq.
23 He was injured when a suicide vehicle exploded near him and
24 shrapnel entered his head. He lost his left eye, his sense
25 of smell, his left frontal lobe, and part of his right
26 frontal lobe. He suffered nerve damage in his right arm and
27 hand. His brain injury affected his thinking and caused him
28 to be more emotional than before, but his ability to feel
1 empathy with others was diminished. He had also become “very
2 compulsive.” He did things he normally would not have done,
3 and he sometimes processed information more slowly.
4 Hernandez met fellow Marine [Petitioner] at Camp
5 Pendleton Marine Corps Base. Shortly thereafter, he met
6 [Petitioner’s] cousin, Landers, another Marine. At some
7 point, Hernandez talked to them about Iraq and his injuries.
8 Hernandez acknowledged that he did not discuss the emotional
9 or psychological issues related to his injuries with Landers
10 and [Petitioner].
11 Hernandez heard Landers complain about his problems with
12 Pettigrew, whom Hernandez did not know. Landers said that
13 Pettigrew owed him some cocaine, and [Petitioner] had left
14 his laptop computer with Pettigrew as collateral for the
15 cocaine. Landers believed that Pettigrew was dodging him.
16 Although Pettigrew had told Landers he could pick up the
17 cocaine at Pettigrew’s apartment, Pettigrew would “blow
18 [Landers] off” by turning off his cell phone whenever Landers
19 called him.
20 Hernandez heard Landers and [Petitioner] threatening
21 Pettigrew over the telephone. During a period of two and
22 one-half hours, Landers and [Petitioner] left four
23 threatening messages on Pettigrew’s voicemail. This occurred
24 on the night of September 7, 2007, and the early morning of
25 September 8, 2007.
26 On the evening of September 9, 2007, Hernandez was
27 drinking with [Petitioner] and another Marine at the
28 barracks. They then went to a party at someone’s house.
1 Landers telephoned [Petitioner] there and asked [Petitioner]
2 to pick him up. [Petitioner] eventually agreed, and
3 Hernandez went with [Petitioner] so as not to be stranded.
4 When Landers joined them, Landers began complaining again
5 about Pettigrew dodging him. Landers said Pettigrew still
6 had not given him his cocaine, and if he had a gun “he would
7 bust a cap in his ass . . . .”
8 Hernandez told Landers that he had a handgun, whereupon
9 Landers became “excited, very enthusiastic” and asked
10 Hernandez where the gun was located. Landers wanted to get
11 the gun to shoot Pettigrew. [Petitioner] also said he wanted
12 Hernandez to get his gun, and he said he wanted Pettigrew to
13 be killed. The only reason that Hernandez went with Landers
14 and [Petitioner] to Pettigrew’s apartment was because Landers
15 and [Petitioner] were looking for someone with a gun.
16 Hernandez, Landers, and [Petitioner] drove to
17 Hernandez’s barracks, a 40-minute drive south, and Hernandez
18 retrieved the gun from his car. They then began driving
19 northward to Long Beach. Landers drove, [Petitioner] was in
20 the front passenger seat, and Hernandez was in the rear seat.
21 At some point during the two-hour drive, Hernandez asked the
22 other men what they wanted him to do, and they said they
23 wanted Pettigrew to be shot. Hernandez told them that there
24 was a difference between being shot and being dead and asked
25 them, “Which one do you want?” Landers said, “I want him
26 dead.” [Petitioner] did not say anything, nor did he say,
27 “No.” Hernandez then stated that Landers had the lead role,
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1 but [Petitioner] joined in the response that he wanted the
2 man killed.
3 As they drove northward, Hernandez fired the gun out the
4 window of the car in the Camp Pendleton area. He asked
5 Landers and [Petitioner] more than once what they wanted, and
6 they both said they wanted Pettigrew dead. According to
7 Hernandez, “Plan A was to pick up cocaine. Plan B was to
8 kill somebody, which was Mr. Pettigrew.” Hernandez did not
9 like the fact that Pettigrew was messing with fellow Marines.
10 When they arrived at their destination, they all got out
11 of the car and headed to Pettigrew’s apartment complex.
12 Hernandez told Landers that if Landers wanted “this guy”
13 dead, and the guy did not give Landers what he wanted, then
14 Hernandez was going to shoot him, “because you said you want
15 him dead, right?” In response, “they were, like, ‘Yeah.’”
16 Landers jumped a fence beside Pettigrew’s apartment building
17 to check if Pettigrew’s window was open. Landers planned to
18 have all three of them hop the fence and enter Pettigrew’s
19 apartment through the window, but he returned because “some
20 lady” saw him. Jennifer Potter, who lived next door to
21 Pettigrew, saw a man walking past her window by means of a
22 walkway that was closed off to tenants and the public. When
23 Potter challenged the man, he said he was locked out and was
24 trying to get in his window. Potter believed she heard a
25 gunshot approximately 20 minutes after she saw the man.
26 Hernandez asked to see a floor plan of Pettigrew’s
27 apartment. Landers made one for him out of twigs and small
28 rocks. Hernandez testified that “the plan was always the
1 same: go in, get this guy to give us the coke, and, if not,
2 that he was supposed to get shot.”
3 The three men entered Pettigrew’s building, and Landers
4 lightly turned the door knob of Pettigrew’s apartment.
5 Hernandez told Landers that the door was not locked and that
6 he could push it open, which he did. Landers entered first,
7 then [Petitioner], then Hernandez. Once they had quietly
8 entered the dark apartment, either Landers or [Petitioner]
9 turned on a lamp. Hernandez then saw Pettigrew, but Landers
10 and [Petitioner] had already gone through another doorway
11 inside the apartment. Although the two men were being quiet,
12 Hernandez could hear them moving things around.
13 Hernandez saw that Pettigrew was passed out. Pettigrew
14 awoke and saw Hernandez, whom he did not know. He just
15 looked at Hernandez and said nothing. Landers and
16 [Petitioner] came back in and saw that Pettigrew was awake.
17 “They were, like, ‘Hey, what the fuck? Where is my coke?’”
18 Both Landers and [Petitioner] were shouting, “Where is the
19 computer. Where is my shit.” They began yelling at
20 Pettigrew, demanding the coke.
21 Hernandez noticed that Pettigrew was “on something.”
22 Landers asked Pettigrew if he was on Oxycontin, and Pettigrew
23 said he was. Pettigrew said he would call his connection and
24 get the coke. Pettigrew pushed some buttons on his cell
25 phone and Landers’s phone rang. Landers looked at his phone
26 and said, “What the fuck? . . . [W]hy are you calling me?
27 Call your dealer.” Landers and [Petitioner] continued to
28 demand that Pettigrew get the cocaine, and Pettigrew again
1 attempted to make a phone call. After no more than 20
2 minutes, Hernandez pulled out his pistol and told Pettigrew
3 he had something that would refresh his memory. Hernandez
4 jammed the pistol into Pettigrew’s right eye socket and said,
5 “You need to make your call. Call your dealer. Call whoever
6 you have to call, but get that coke here now.”
7 Pettigrew continued to push buttons on his phone.
8 Hernandez told him that he would give him 10 seconds. If
9 Pettigrew had not produced something at the end of those 10
10 seconds, Hernandez was going to shoot him. Neither Landers
11 nor [Petitioner] said anything or attempted to stop
12 Hernandez. Neither told him to put the gun away. They
13 continued to yell at Pettigrew saying, “When he starts
14 counting and he gets to 10, when he makes it to 10 he is
15 going to shoot you, so hurry up, get on the phone, call your
16 dealer and get the coke here right now.”
17 Hernandez began counting. He counted very slowly,
18 waiting approximately 10 or 15 seconds between each number.
19 When he got to 10, he shot Pettigrew from a distance of
20 approximately four feet. He did so because that is what
21 Landers and [Petitioner] had brought him along to do. He did
22 it to back up his fellow Marines. At no time during the
23 count did either man say or do anything to register their
24 objection to Hernandez’s shooting Pettigrew. Landers and
25 [Petitioner] were telling Pettigrew to come up with the stuff
26 or Hernandez would shoot him.
27 When Hernandez shot Pettigrew, Landers and [Petitioner]
28 were shocked. Hernandez believed the shock was not caused by
1 the fact that the shot actually occurred but rather because
2 they were shocked at what they saw – they were not
3 conditioned to see something like that. They knew they were
4 all there to shoot Pettigrew. Landers jumped back and said,
5 “Dude, you almost got blood on me.” [Petitioner] just stood
6 there with his mouth and his eyes wide open. The three men
7 ran to the car. Landers drove around aimlessly for about
8 half an hour until Hernandez told him that they needed to get
9 back on the freeway. [Petitioner] was hysterical. Hernandez
10 explained that, when he said [Petitioner] was “hysterical,”
11 he meant that he was speaking very loudly and saying, “Do you
12 think [] he is dead? Do you think he is dead? We should go
13 back.” [Petitioner] wanted to see if the police would show
14 up. He was not crying, and Landers was not crying either.
15 Hernandez repeated that after he asked Landers and
16 [Petitioner] if they wanted Pettigrew killed, they both
17 answered “yes.” Hernandez asked the same question during the
18 trip between Camp Pendleton and Long Beach, when they got to
19 Long Beach, before they left the barracks, and just before
20 they entered Pettigrew’s apartment. Both Landers and
21 [Petitioner] looked at the gun during the trip, and
22 [Petitioner] played with it until he was told to stop it.
23 Before the shot was fired, neither Landers nor [Petitioner]
24 told Hernandez not to do it.
25 Hernandez said that when he told defense counsel on
26 cross-examination that he did not intend to kill Pettigrew,
27 he meant that he did not want him dead. It was not up to
28 him. He did not even know him. However, he was willing to
1 kill him because Landers and [Petitioner] had asked him to do
2 so. The rationale was that Pettigrew was messing with
3 Hernandez’s fellow Marines. Hernandez acknowledged that he
4 had previously testified that he shot Pettigrew because
5 Hernandez had given Pettigrew a specific order and Pettigrew
6 had not obeyed it.
7 After the shooting, the three men drove back to Camp
8 Pendleton, stopping on the way for food at a convenience
9 store. They went to Landers’s room and talked about the
10 shooting. They agreed not to say anything and to pretend
11 they did not know each other. They drank and “hung out” for
12 about three more hours. Landers told Hernandez he should
13 have shot Pettigrew two more times to ensure he was dead.
14 On the day after the shooting, September 10, 2007,
15 Mauricio Rosales, a maintenance man, noticed an apartment
16 door ajar in Pettigrew’s building. When he looked inside, he
17 saw a man slumped down on the sofa with a cell phone in his
18 right hand. The man was bloody and was not breathing.
19 Rosales called 911.
20 Police officers responded to the scene. A nine-
21 millimeter casing and an expended round were collected in the
22 apartment. Dr. Raffi Djabourian, a deputy medical examiner,
23 testified that Pettigrew had a bullet entrance wound at the
24 left temple that exited on the back of the head. The wound
25 was rapidly fatal. The victim was found still holding his
26 cell phone due to a rapid onset of rigor. None of the
27 various drugs found in his system contributed to his death.
28
1 Detective Scott Lasch was assigned to the Pettigrew
2 murder case along with Detective Malcolm Evans. They did not
3 find any narcotics or drug-dealing paraphernalia in
4 Pettigrew’s apartment. They found a laptop computer that was
5 registered to [Petitioner] on the rear seat of Pettigrew’s
6 truck. Detective Lasch discovered that a parking citation
7 was issued to [Petitioner] on September 6, 2007 (three days
8 before the shooting), in the area of Orizaba Avenue in Long
9 Beach, near Pettigrew’s apartment.
10 By means of Pettigrew’s cell phone records, the
11 investigating officers established that calls were made from
12 Landers’s and [Petitioner’s] cell phones to Pettigrew on the
13 night of his death and two days before his death. Two days
14 before the shooting, [Petitioner] said: “Hey what’s up
15 brotha. I know you know who this is. It’s fuckin’ Tony.
16 And dude, fuckin’, eh-heh, if you don’t stop playing games,
17 it’s gonna get ugly dude. And, fuckin’, I’m gonna come to
18 your house. And it’s gonna be all bad. So hit me back,
19 ASAP. Late.” Fifty-three minutes later, [Petitioner] left
20 the following message: “Dave you better fuckin’ hit me back
21 right now dude. Fuckin’, me and my cousin, we ain’t playin’
22 dude. You fuckin’ hit us back up or I’ll fuckin’ find your
23 ass dude. Hit me up. Late.”
24 In between [Petitioner’s] two messages, Landers left a
25 message stating, “Hey Dave, you better fuckin’ call me back
26 bro.” Shortly after midnight, on September 8, 2007,
27 [Petitioner] left the following message: “Dave, don’t even
28 play dude. Fuckin’, me and my b-me and my homeboy Tre,
1 fuckin’, are ready to rumble dude. Fuckin, pick up your
2 phone dude or it’s gonna get ugly. Just to let you know.
3 Nobody fuckin’ robs me dude. No one. So, it’s in your best
4 interest to pick up your phone, otherwise it’s gonna get
5 really ugly, and we know where to find you. Not only at your
6 apartment, but we got fuckin’ military fuckin’ aspect.
7 Fuckin’, we know where to look man. You’re fucked if you try
8 to run. Alright . . . . Hit me up. See if I’m playing.
9 Late.”
10 Detective Bryan McMahon investigated cell site hits for
11 telephones linked to Landers and [Petitioner]. He discovered
12 that the hits on the cell sites during the evening of
13 Pettigrew’s death began near Camp Pendleton and proceeded
14 north along the coast, the No. 5 freeway, the No. 22 freeway,
15 and all the way to Long Beach. A cluster of hits at a
16 certain point led the investigators to go to that location,
17 and they located a gas station near that spot. The
18 investigators obtained footage from the gas station’s
19 security cameras that showed [Petitioner], Landers, and
20 Hernandez pulling up to the pumps at 8:40 p.m. They all got
21 out of the car. [Petitioner] is seen talking on his cell
22 phone, and Landers also used his cell phone. The footage
23 showed Landers driving away from the gas station at 8:51 p.m.
24 Detective Dennis Robbins assisted in the investigation
25 of Pettigrew’s murder. After Landers was arrested in the Bay
26 Area by United States Marshal[]s, Detective Robbins
27 interviewed Landers in the Contra Costa County jail on
28 September 27. When shown a photograph of his cousin,
1 [Petitioner], Landers said he did not know him. Landers said
2 he did not know Hernandez when shown a photograph of him.
3 Landers said he had not been in Long Beach in the preceding
4 weeks. Landers acknowledged that he was due back at Camp
5 Pendleton on September 24, 2007, and he failed to show up.
6 He said it was because he had been scheduled to go to Iraq on
7 September 28, and he did not want to go.
8 Detective McMahon testified that he made a series of
9 phone calls to [Petitioner] on September 23, 2007, between
10 4:32 p.m. and 6:45 p.m. Not all of the calls were answered.
11 An audio recording of the calls was played for the jury.
12 [Petitioner] exchanged pleasantries with the detective,
13 beginning with “How’s it going man?” when the detective
14 introduced himself. When asked if he knew anybody that had
15 recently been murdered down in Long Beach, [Petitioner]
16 merely replied, “Negative.” When told that the “guy’s name
17 was David and asked if the name rang a bell, [Petitioner]
18 said “Yes.” When Detective McMahon then asked “What’s
19 that?,” [Petitioner] said he had left his laptop “down
20 there.” He said David was his cousin’s friend. He then said
21 his cousin, named Trevor Landers, had met David a couple of
22 times. [Petitioner] said he lent Pettigrew the laptop “a
23 couple of months” earlier. [Petitioner] denied several times
24 having spoken to Pettigrew on his phone just after midnight
25 on September 8, 2007. He said he had never been to
26 Pettigrew’s home in Long Beach. [Petitioner] said that
27 Landers knew Pettigrew from school. When the detective asked
28 [Petitioner] how he could be contacted, [Petitioner] replied
1 that he had just moved into his barracks two weeks earlier
2 and was not sure the detective could contact him there. When
3 asked again about phone calls to Pettigrew, [Petitioner]
4 claimed he had lent his phone to a friend named Hernandez,
5 but Hernandez did not know Pettigrew. [Petitioner] had not
6 seen Pettigrew in “probably like a month.” [Petitioner]
7 expressed no curiosity when the detective stated that he was
8 trying to figure out what happened to Pettigrew. [Petition-
9 er] merely replied, “Yeah.” When the detective told
10 [Petitioner] that Pettigrew was murdered, [Petitioner]
11 expressed surprise.
12 [Petitioner] told the detective that he had gone to a
13 going-away party at the home of a Corporal Schrader on
14 September 8, 2007, a Saturday. He was at the party from 4:00
15 or 5:00 until 1:00 or 2:00 the next morning. He then said he
16 called Pettigrew from the party to ask for his laptop. In a
17 subsequent phone call, Detective McMahon clarified to
18 [Petitioner] that the murder took place on Sunday, September
19 9. [Petitioner] said he was alone that day, “just chilling.”
20 Detective McMahon interviewed Hernandez on September 29,
21 2007. Hernandez initially denied going to Long Beach. After
22 being told that another suspect was in custody, Hernandez
23 related the events on the night of the murder. An audio
24 recording of Hernandez’s interview was played for the jury.
25 Detective McMahon retrieved Hernandez’s gun from a
26 location in Tempe, Arizona, where Hernandez had directed him
27 to look. The gun was a Browning high-power nine-millimeter
28 weapon []. Troy Ward, a criminalist with the Long Beach
1 Police Department, confirmed that Hernandez’s firearm matched
2 the shell casing found at the scene of Pettigrew’s shooting.
3 (Lodged Doc. No. 28 at 2-10.)
4 III.
5 STANDARD OF REVIEW
6 The standard of review in this case is set forth in 28 U.S.C.
7 § 2254:
8 An application for a writ of habeas corpus on behalf of a
9 person in custody pursuant to the judgment of a State court
10 shall not be granted with respect to any claim that was
11 adjudicated on the merits in State court proceedings unless the
12 adjudication of the claim–
13 (1) resulted in a decision that was contrary to, or
14 involved an unreasonable application of, clearly established
15 Federal law, as determined by the Supreme Court of the
16 United States; or
17 (2) resulted in a decision that was based on an
18 unreasonable determination of the facts in light of the
19 evidence presented in the State court proceeding.
20 28 U.S.C. § 2254(d).
21 A state court decision is “contrary to” clearly established
22 federal law if it applies a rule that contradicts Supreme Court case
23 law or if it reaches a conclusion different from the Supreme Court’s
24 in a case that involves facts that are materially indistinguishable.
25 Bell v. Cone, 535 U.S. 685, 694 (2002). To establish that the state
26 court unreasonably applied federal law, a petitioner must show that
27 the state court’s application of Supreme Court precedent to the facts
28
1 of his case was not only incorrect but objectively unreasonable.
2 Renico v. Lett, 559 U.S. 766, 773 (2010).
3 Petitioner raised his claim in his petition for review in the
4 California Supreme Court, but that court did not explain its reasons
5 for denying it. The appellate court, however, did, which this Court
6 presumes is the basis for the state supreme court’s subsequent
7 decision denying the claim.2 In this situation, the Court looks to
8 the appellate court’s reasoning and will not disturb it unless it
9 concludes that “fairminded jurists” would all agree that the decision
10 was wrong. Harrington v. Richter, 562 U.S. 86, 102 (2011); Johnson v.
11 Williams, 568 U.S. 289, 297 n.1 (2013) (approving reviewing court’s
12 “look through” to last reasoned state-court decision); see also Wilson
13 v. Sellers, U.S. , 2018 WL 1800370, at *5 (2018) (concluding
14 “federal habeas law employs a ‘look through’ presumption”).
15 IV.
16 DISCUSSION
17 Petitioner claims that his trial counsel was ineffective because
18 he failed to investigate Hernandez’s mental infirmities. (Petition at
19 5.) He argues that counsel should have hired a neuropsychologist to
20 help him prepare for trial and to testify about “the effects of
21 Hernandez’s mental deficiencies on his memory and actions.”
22 (Petition, Attachment at 17.) For the following reasons, the Court
23
24
2 Petitioner first raised his ineffective assistance claim in a
25 habeas petition in the California Court of Appeal, which rejected it
on the ground that Petitioner had not established prejudice. (Lodged
26
Doc. Nos. 16, 17.) He thereafter raised it on appeal following
27 remand. (Lodged Doc. No. 25 at 35-38.) This time, the appellate
court found both that counsel’s performance was not deficient and that
28 there was no prejudice. (Lodged Doc. No. 28 at 11-21.) It is this
last decision that the Court addresses.
1 concludes that the state courts’ finding that Petitioner did not
2 establish prejudice as a result of counsel’s performance was supported
3 by the record and that not all fairminded jurists would disagree. As
4 such, Petitioner is not entitled to relief.
5 A defendant in a criminal case has a constitutional right to
6 effective assistance of counsel. See Strickland v. Washington, 466
7 U.S. 668, 686 (1984). To establish that counsel was ineffective, a
8 petitioner must prove that counsel’s performance was objectively
9 unreasonable and that he was prejudiced as a result. Id. at 687–88,
10 694. With respect to the prejudice component, Strickland requires
11 that a petitioner demonstrate “a reasonable probability that, but for
12 counsel’s unprofessional errors, the result of the proceeding would
13 have been different. A reasonable probability is a probability
14 sufficient to undermine confidence in the outcome.” Id. at 104.
15 Because the California Court of Appeal adjudicated the prejudice issue
16 on the merits, “the state court’s determination [must be allowed] to
17 stand unless it is contrary to or an unreasonable application of
18 federal law or is based on an unreasonable determination of the
19 facts.” Mann v. Ryan, 828 F.3d 1143, 1155 (9th Cir. 2016) (en banc).
20 Thus, the “pivotal question is whether the state court’s application
21 of Strickland was unreasonable.” Richter, 562 U.S. at 101. “The more
22 general the rule, the more leeway courts have in reaching outcomes in
23 case-by-case determinations.” Id. As such, in reviewing
24 ineffectiveness claims, the Court applies a “doubly deferential”
25 standard of review. Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).
26 The thrust of Petitioner’s argument is that, had his counsel
27 investigated Hernandez’s impairments and hired an expert to testify at
28 trial about these impairments, he could have established that
1 Hernandez did not have the capacity to “perceive, comprehend and
2 report what [Petitioner] purportedly perceived, comprehended and
3 intended,” which would have caused the jury to acquit Petitioner.3
4 (Petition at 31-32.)
5 The California Court of Appeal reviewed the medical records and
6 the experts’ opinions, which were attached to Petitioner’s habeas
7 corpus petition, and found that Petitioner did not prove that he was
8 prejudiced by counsel’s failure to investigate Hernandez’s medical
9 condition or to retain an expert to testify at trial:
10 Hernandez’s medical records reveal little regarding any mental
11 deficits he may have suffered from as a result of the injury to
12 his head. Most of the entries involve his rehabilitation after
13 his injury and various physical problems, unrelated to his
14 injury, that he suffered over the years since 2004. A report of
15 a neuropsychological evaluation in October 2004 states that
16 Hernandez had intact perceptual and spatial skills, language,
17 attention, learning, and auditory memory ability. Hernandez
18 exhibited extremely strong skills in his ability to recall a
19 general fund of information and in visual memory ability.
20 Cognitive flexibility was somewhat weak but deemed likely to
21
22
3 In support of this argument in state court, Petitioner
23 submitted declarations from Dr. Harvey Dondershine, a clinical neuro-
psychiatrist, Dr. Kathleen Toups, a psychiatrist, and Dr. Timothy
24 Collister, a clinical neuropsychologist, as well as relevant excerpts
from Hernandez’s medical records. (Petition at 15-16 and Exh. E at
25 37-47, Exh. F at 48-49, Exh. G at 50-235. Exh. H at 236-76.) Dr.
Dondershine opined that Hernandez’s brain injury, related seizures,
26
and post-traumatic stress disorder would have impaired his competency
27 to testify and caused him to engage in impulsive, “inappropriate”
behavior. (Petition at 22-26.) Dr. Collister opined that Hernandez’s
28 head injury would likely have explained the discrepancies in his
testimony and his intent in killing Pettigrew. (Petition at 26-28.)
1 improve. This evidence would have given the prosecutor a strong
2 counterpoint to any defense expert testimony about Hernandez’s
3 defects. This evidence, combined with Hernandez’s demeanor and
4 frankness before the jury, leaves little possibility that his
5 testimony at the trial of [Petitioner] and Landers would have
6 been discredited to a greater degree than it already was.
7 Furthermore, as we explained in our opinion in [Petitioner’s] and
8 Landers’ appeals, Hernandez’s testimony was substantially
9 corroborated by independent evidence. (People v. Landers,
10 supra, B218366.)
11 (Lodged Doc. No. 28 at 19-20.)
12 Petitioner argues that the appellate court’s prejudice analysis
13 was unreasonable because he is convinced that the testimony proffered
14 by Drs. Dondershine and Collister would have caused the jury to
15 question Hernandez’s credibility as a witness. (Traverse at 52-53.)
16 Petitioner contends that evidence of Hernandez’s brain injury would
17 have shown the jury that Hernandez had a diminished capacity to
18 “perceive, comprehend[,] and accurately report Petitioner’s intent to
19 commit the charged crimes.” (Traverse at 28-29.) The Court rejects
20 these arguments.
21 This was not a close case. Hernandez’s testimony was damning, to
22 be sure, and played an important role in Petitioner’s conviction. But
23 it was not the only evidence or the most compelling evidence
24 establishing Petitioner’s intent. Petitioner threatened Pettigrew in
25 three voice mail messages just days before the murder. (RT 1285-86.)
26 In the first, Petitioner told Pettigrew that, “If you don’t stop
27 playing games, it’s gonna get ugly, dude. And, fuckin’, I’m gonna
28 come to your house. And it’s gonna be all bad.” (Supp. Clerk’s
Transcript, Lodged Doc. No. 2 (“SCT”) 01.) In the second, Petitioner
1 warned Pettigrew, “Dave you better fuckin’ hit me back right now dude.
2 Fuckin’, me and my cousin, we ain’t playin’ dude. You fuckin’ hit us
3 back up or I’ll fuckin’ find your ass dude. Hit me up.” (SCT 01.)
4 In the third voice mail, Petitioner told Pettigrew:
5 Dave, don’t even play dude. Fuckin’, me and my b-me and my
6 homeboy Tre,[4] fuckin’, are ready to rumble dude. Fuckin’, pick
7 up your phone dude or it’s gonna get ugly. Just to let you know.
8 Nobody fuckin’ robs me dude. No one. So, it’s in your best
9 interest to pick up your phone, otherwise it’s gonna get really
10 ugly, and we know where to find you. Not only at your apartment,
11 but we got fuckin’ military fuckin’ aspect. Fuckin’, we know
12 where to look man. You’re fucked if you try to run.
13 (SCT 02.)
14 These calls supported the prosecution’s argument that Petitioner
15 wanted Hernandez to shoot Pettigrew. The evidence from the night of
16 the murder also supports that view. The three men took a 40-minute
17 detour to the Marine barracks to retrieve a gun in Hernandez’s car
18 that they could use to shoot Hernandez. Once they got it, Petitioner
19 and the others took turns handling the gun while they drove for two
20 hours from the barracks to Long Beach. During the drive, Hernandez
21 fired the gun out the car window. Petitioner and Landers actively
22 encouraged Hernandez to kill Pettigrew while the three drove to Long
23 Beach. Hernandez agreed to kill him even though he did not know
24 Pettigrew and, in fact, had never met him.
25 Once inside Pettigrew’s apartment, Petitioner joined Landers and
26 Hernandez in threatening Pettigrew. Hernandez then pulled out the
27 gun, stuck it in Pettigrew’s face, and told Pettigrew that if he did
28
4 Codefendant Landers’ first name is Trevor.
1 not make a phone call to get the cocaine by the time Hernandez counted
2 to ten that Hernandez was going to shoot him. Instead of urging
3 Hernandez to stop during the elongated countdown that followed,
4 Petitioner (and Landers) continued to threaten Pettigrew and told him
5 that Hernandez would shoot him if he did not comply. Sure enough,
6 when Hernandez reached ten and Pettigrew had not complied, Hernandez
7 shot and killed him.
8 After the murder, Petitioner fled with the others and spent hours
9 with them concocting a scheme to avoid suspicion if confronted by
10 police. When later questioned by police, consistent with that plan,
11 Petitioner lied, claiming that he did not know his cousin Landers and
12 did not know about Pettigrew’s murder. This evidence was more than
13 enough to establish Petitioner’s intent that night.
14 Petitioner makes much of the fact that, in the course of his
15 lengthy testimony, Hernandez testified that he thought that
16 Petitioner’s reaction to the shooting was because he had never seen
17 anyone shot before, not because he was surprised that Hernandez
18 actually pulled the trigger. In Petitioner’s view, it seems, this
19 testimony alone was what caused the jury to conclude that Petitioner
20 wanted Hernandez to murder Pettigrew. Petitioner is simply wrong.
21 This testimony was the least persuasive part of Hernandez’s testimony
22 and the least important part of the evidence establishing Petitioner’s
23 intent. It was all the other things that Petitioner did and said in
24 the days leading up to the killing and on the night of the killing
25 that established what Petitioner was thinking. Hernandez’s testimony
26 about what he thought Petitioner was thinking, though consistent with
27 the other evidence, was not that compelling. Nor is Petitioner’s
28 argument that counsel was ineffective for failing to have a
1 psychologist testify that Hernandez did not have the wherewithal to
2 analyze Petitioner’s feelings. Thus, even assuming that counsel
3 should have hired an expert to challenge Hernandez’s testimony, the
4 state appellate court was right to conclude that there was no
5 prejudice in not doing so.
6 As to Petitioner’s argument that an expert could have assisted
7 counsel in establishing that Hernandez’s memory of the facts was
8 shaky, the record undermines this argument as well. Much of
9 Hernandez’s testimony was corroborated by other evidence. For
10 example, Hernandez testified that he was present in the days leading
11 up to the murder when Petitioner and Landers left threatening messages
12 on Pettigrew’s voice mail. The recorded messages on Pettigrew’s voice
13 mail corroborated that testimony. Hernandez testified that, on the
14 night of the murder, he, Petitioner, and Landers drove 40 minutes
15 south to Hernandez’s barracks to retrieve Hernandez’s gun before
16 turning around and retracing their steps to go to Long Beach to kill
17 Pettigrew. This testimony was corroborated by cell phone records that
18 showed that their phones had pinged off cell towers on the route
19 Hernandez described. Hernandez claimed that the three men stopped at
20 a convenience store on the way to Long Beach. This testimony was
21 corroborated by a video from a gas station surveillance camera showing
22 the three men together at the convenience store on the night of the
23 murder. Hernandez testified that, when they arrived at Pettigrew’s
24 apartment complex, Landers jumped over a fence to see if a window was
25 open in Pettigrew’s apartment and was seen by a neighbor, with whom he
26 exchanged words. This testimony was corroborated by the neighbor.
27 Hernandez testified that, when they confronted Pettigrew in the
28 apartment and ordered him to call his drug dealer, Pettigrew dialed
1 Landers’ number by mistake. This testimony was corroborated by cell
2 phone records. Thus, Petitioner’s argument that a neuropsychiatrist
3 or psychologist could have helped counsel make clear to the jury that
4 Hernandez’s memory was faulty and that, by doing so, the jury would
5 not have unanimously voted to convict is not persuasive and,
6 therefore, the appellate court’s ruling that Petitioner failed to
7 establish prejudice on this claim will not be disturbed.
8 Finally, Petitioner claims that his counsel was unable to
9 properly prepare for trial and to effectively cross-examine Hernandez
10 because counsel did not have a medical expert explaining to him the
11 nature of Hernandez’s impairments and how they interfered with his
12 perception and memory. The record does not support this argument,
13 either. Hernandez testified over the course of two days. He was
14 questioned by the prosecutor and extensively cross-examined by
15 Petitioner’s counsel and Landers’ counsel. During the course of his
16 testimony, Hernandez explained the nature of his injuries and how they
17 impacted his cognitive abilities. He readily admitted that he was
18 drunk on the night of the murder and did not remember everything. He
19 conceded more than once that he was confused and that he could not
20 remember. Defense counsel repeatedly tripped him up with his prior
21 testimony. Still, at the end of the day, the jury was presented with
22 a former marine who readily admitted that he, Petitioner, and Landers
23 went to Pettigrew’s apartment with a gun so that Hernandez could kill
24 Pettigrew. The jury heard Petitioner’s and Landers’ recorded threats
25 on Pettigrew’s voice mail. They also heard Hernandez testify that
26 Petitioner and Landers had repeatedly asked Hernandez to kill
27 Pettigrew. Petitioner’s argument that, had an expert been retained,
28 the outcome would have been different is not supported by this record.
1 More importantly, the state appellate court’s finding that Petitioner
2|| failed to establish that any alleged ineffectiveness did not cause
3 || prejudice is not one that “fairminded jurists” would all agree was
4||/wrong. As such, the Petition is denied. Richter, 562 U.S. at 102.°
5 Vv.
6 RECOMMENDATION
7 For these reasons, IT IS RECOMMENDED that the Court issue an
8 || Order (1) accepting this Final Report and Recommendation and
9] (2) directing that Judgment be entered denying the Petition and
10 || dismissing the case with prejudice.°®
11 DATED: April 25, 2018
13 ;
PATRICK J. WALSH
14 UNITED STATES MAGISTRATE JUDGE
15
16
17
18 |] s:\paw\cases-State Habeas\VIGEANT, A 628\Final R&R.wpd
19 |; ——___"""[/[""__—_”
20 ° Petitioner also submitted declarations from his mother and
from several attorneys (James Gregory, Gregorio Ramon, Leslie Conrad,
21] and Randall Riccardo) in an effort to establish that trial counsel was
ineffective. The Court need not address this evidence because it has
22 | concluded that, even assuming that counsel was ineffective for not
23 hiring an expert, there was no prejudice. See Strickland, 466 U.S. at
697 (holding ineffective assistance claim must be denied if petitioner
94 | cannot establish prejudice, regardless of whether counsel’s perform-
ance was deficient).
25
®° The Court is not inclined to issue a certificate of
26 | appealability in this case. See Rule 11, Federal Rules Governing
57 Section 2254 Cases (“The district court must issue or deny a
certificate of appealability when it enters a final order adverse to
2g | the applicant.”). If Petitioner believes a certificate should issue,
he should explain why in his Objections to the Final Report and
Recommendation.
25