Opinion
Case No. 01-3185-RDR
January 15, 2004
MEMORANDUM AND ORDER
This matter is presently before the court upon petitioner'spro se application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Having carefully reviewed the arguments of the parties, the court is now prepared to rule.
Petitioner was charged in Kansas state court with one count of first degree murder in violation of K.S.A. 21-3401(a) or, in the alternative, first degree felony murder in violation of K.S.A. 21-3401(b); one count of criminal discharge of a firearm at an occupied building in violation of K.S.A. 21-4219; and two counts of attempted first degree murder in violation of K.S.A. 21-3301. On November 19, 1998, petitioner was convicted by a jury of first degree premeditated murder, criminal discharge of a firearm at an occupied dwelling, and two counts of attempted first degree murder. He was sentenced to life imprisonment without possibility of parole for 40 years (Hard 40) on the murder conviction. He was sentenced to terms of 49 months on the firearm discharge count and 184 months on each of the attempted murders counts. The sentences were to run consecutively for a controlling term of imprisonment of life (Hard 40) plus 437 months.
The defendant's convictions and sentences were affirmed by the Kansas Supreme Court on appeal on July 14, 2000. State of Kansas v. Saiz, 269 Kan. 657, 7 P.3d 1214 (2000). Petitioner filed the instant petition on May 14, 2001.
In this petition, petitioner raises three issues, all of which he raised on direct appeal. He contends that (1) the trial court erred by failing to give an instruction on aggravated assault as a lesser included offense of attempted first degree murder; (2) there was insufficient evidence presented at trial to support his first degree murder conviction and the two attempted first degree murder convictions; and (3) the trial court erred by finding that the aggravating factors outweighed the mitigating factors in sentencing him to the Hard 40 sentence. In his brief, he suggests that he was the victim of the "Kansas Lynch Mob Judicial Procedure." He further asserts that the incident in this case was only a "tragic accident."
I.
On July 21, 1998, petitioner, Jesse Lazano, Thomas Estrada and Daniel Medrano were riding in Medrano's car in Wichita, Kansas. They had been drinking. They were all members of a Hispanic gang called the Vato Loco Boys. Their "territory" was the north side of Wichita. Petitioner threw a bottle out of the window of the car, unsuccessfully trying to break it. Petitioner had Medrano back up so he could break the bottle. When Medrano put the car in reverse, he hit a parked car. The collision caused damage to the rear of Medrano's car.
Subsequently, petitioner and Medrano went to Oscar Torres' house. Torres was another member of the gang. They told Torres a fictional tale that the Surianos, a rival gang whose "territory" was south Wichita in an area known as Planeview, had rammed Medrano's car. Petitioner and Medrano wanted Torres to help them retaliate against the Surianos.
Later in the evening petitioner, Medrano, Estrada, and Lozano were at Everett McGinnis' house. Medrano told McGinnis and several others that Medrano's car had been damaged by the Surianos. Petitioner, Estrada and Lozano backed up Medrano's lie. The group talked about retaliation and decided to drive to the south side of Wichita and shoot some Surianos. The group got in Torres' father's Lincoln Town Car and drove to Planeview. Torres drove and petitioner sat in the front seat, next to the window. The group took two weapons, a. 22 caliber rifle and a .20 gauge shotgun.
On the way to Planeview, Torres stopped the car so that petitioner could retrieve the shotgun from the trunk. After arriving in Planeview, Torres looked for a particular house. He stopped and announced, "Well, there it is." The group saw two teenagers sitting on the back of a red car in front of a residence on Dunham street.
Manuel Galvan III, who was 14 years old, and his friend, Ricky Delorea, were "hanging out" near Galvan's mother's red car in front of his house when the Lincoln approached at about 10:30 that night. Galvan was sitting on the trunk and Delorea was standing nearby. Galvan's father, mother, and 13-year-old brother were inside the house. Galvan's 8-year-old brother, Antonio, was outside near the porch playing with his puppy. Galvan and Delorea saw the Lincoln drive by them with its lights off. Petitioner pointed a shotgun out of the front passenger window. Someone from the Lincoln shouted, "Pudo Loco Boys," which means "nothing but Vato Loco Boys." The petitioner then started shooting. He successfully fired the shotgun three times. Medrano tried to fire the .22 rifle, but it would not fire.
Galvan yelled "duck" before any shots were fired. He crouched behind his mother's car. Delorea got underneath the car. Neither boy was hit by the gunfire. One shot hit the windshield of the car, and another shot hit the roof of the car, deflected off and hit the house. The third shot was a direct shot and it hit Antonio Galvan in the head, causing his death.
After the shooting, petitioner told the others that he "got them." He bragged, "Man, I got them. I got them." After they drove away from the Galvan home, petitioner and Medrano wanted to go back and shoot some more because Medrano's rifle had not fired during the shooting.
Shortly after the shooting, Officer Patrick Phipps of the Wichita Police Department was patrolling the Planeview neighborhood. He received a call concerning a shooting on Dunham Street involving a dark-colored Lincoln with dark-tinted windows. He subsequently spotted the Lincoln and gave chase. After the car was stopped, officers found the shotgun in the back seat on the floorboard of the Lincoln. The rifle had been thrown out the window after the shooting. A woman found the gun lying in her yard the morning after the shooting.
II.
A writ of habeas corpus may not be granted unless the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or, "was based on an unreasonable determination of the facts in light of the evidence presented at trial." 28 U.S.C. § 2254(d)(1) (2). State court factual findings are presumed correct, absent clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1).
The Supreme Court has stated that a state court decision is "contrary to" clearly established federal law "if the state court applies a rule that contradicts the governing law set forth in our cases" or if the state court "confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision is an unreasonable application of federal law "if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case."Id. at 413.
The law limits the authority of the court to hold an evidentiary hearing upon petitioner's application for relief:
If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that — (A) the claim relies on — (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.28 U.S.C. § 2254(e)(2).
III.
A. Failure to Instruct on Lesser-Included Offense
The petitioner argues that the state court erred in failing to instruct the jury that aggravated assault is a lesser included offense of attempted first degree murder. The respondent contends that the petitioner is not entitled to habeas relief on this issue.
The Kansas Supreme Court determined that the applicable state statutory law did not support the petitioner's request for the lesser included offense of aggravated assault to the attempted first degree murder charges. The court agrees with the respondent on the availability of habeas relief on this claim. The petitioner is not entitled to habeas relief for failure to give a lesser included offense instruction in a non-capital case. Lujan v. Tansy, 2 F.3d 1031, 1036 (10th Cir. 1993) (petitioner in non-capital case not entitled to habeas relief for failure to give lesser-included instruction even if federal court believes there was sufficient evidence to warrant giving instruction on lesser-included offense), cert. denied, 510 U.S. 1120 (1994).
B. Insufficient Evidence for Convictions
The petitioner contends that evidence at trial was insufficient to sustain his convictions for premeditated first degree murder and attempted first degree murder. He contends the prosecution failed to prove beyond a reasonable doubt that he had the requisite intent to kill Antonio Galvan or the requisite intent to attempt to murder Manuel Galvan III or Ricky Delorea.
In examining petitioner's sufficiency of the evidence claims, the appropriate inquiry is "whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."Jackson v. Virginia, 443 U.S. 307, 319 (1979). The court must accept the jury's resolution of the evidence as long as it is within the bounds of reason. Kelly v. Roberts, 998 F.2d 802, 808 (10th Cir. 1993).
The Tenth Circuit has not resolved whether the court should review a sufficiency of the evidence issue as a legal determination under 28 U.S.C. § 2254(d)(1) or a factual finding under § 2254(d)(2) and (e)(1). Fields v. Gibson, 277 F.3d 1203, 1220 (10th Cir. 2002). Under either standard, petitioner's claims fail.
The court has reviewed the Kansas Supreme Court's opinion and determined that it applied the correct standard in reviewing the evidence presented at trial. The Court concluded that there was sufficient evidence to support the first degree murder conviction and the attempted first degree murder convictions. Specifically, the Court found the following concerning the attempted murder convictions:
Saiz went to Planeview with the intent to shoot someone. Saiz aimed the. 20 gauge semi-automatic shotgun at Galvan and Delorea and fired at close range. Fortunately, Galvan and Delorea were able to get behind and under the car just prior to the shooting and were not hurt. Saiz successfully fired two shots in the direction of Galvan and Delorea. Saiz bragged to the other passengers in the car that he "got them."
The evidence, when viewed in a light most favorable to the prosecution, could convince a rational factfinder to find Saiz guilty of two counts of attempted murder beyond a reasonable doubt.Saiz, 7 P.3d at 1220.
With regard to the first degree murder conviction, the Court stated:
There was sufficient evidence to support the premeditated first degree murder charge as testimony was elicited at trial in which Saiz went to the Galvan house with the intent to shoot someone. Saiz saw Galvan and Delorea by the car, aimed the shotgun at them, and fired several times. The third shot was not the result of a ricochet or a deflection and hit Antonio in the head, resulting in his death. A defendant is responsible for all of the usual consequences of his or her criminal actions.
There was also sufficient evidence to support the felony first degree murder charge. Saiz admitted he intended to shoot at the Galvan house. Criminal discharge of a firearm at an occupied building, which is an inherently dangerous felony, is a felony which can support the felony murder charge. The attempted murders of both Galvan and Delorea also sufficiently support the felony murder charge.
The evidence, when viewed in a light most favorable to the prosecution, could convince a rational factfinder to find Saiz guilty of either premeditated or felony first degree murder beyond a reasonable doubt.Id., at 1221.
Viewing the evidence in the light most favorable to the prosecution, the court concludes that a rational trier of fact could find that the petitioner committed attempted first degree murder and premeditated first degree murder. Petitioner's convictions are neither "contrary to, or involved an unreasonable application of, clearly established Federal law," 28 U.S.C. § 2254(d)(1), nor were they "based on an unreasonable determination of the facts in light of the evidence presented at trial," 28 U.S.C. § 2254(d)(2). Accordingly, the court shall deny relief on this issue.
C. Sentencing Errors
The petitioner contends the state court erred in sentencing him to the "Hard 40" sentence. He asserts initially that there was insufficient evidence to support the finding of an aggravating factor. He further argues the state court failed to follow Kansas law in determining that the aggravating factor outweighed the mitigating factor.
The trial court, in determining that an aggravating factor was present, found that the petitioner had "purposely created a risk of death to more than one person." The Kansas Supreme Court found that there was "sufficient evidence, when viewed in a light most favorable to the State, by which a rational factfinder could have found by a preponderance of the evidence, the existence of the aggravating factor." Saiz, 7 P.3d at 1222. After a careful review of the evidence offered at trial, the court agrees. The Kansas Supreme Court's decision on this issue was not "contrary to, or involved an unreasonable application of, clearly established Federal law," 28 U.S.C. § 2254(d)(1), and was not "based on an unreasonable determination of the facts in light of the evidence presented at trial," 28 U.S.C. § 2254(d)(2). Relief is denied on this issue.
Petitioner's other contention that the state court failed to follow Kansas law in determining that the aggravating factor outweighed the mitigating factor does not provide grounds for relief. Alleged state law sentencing errors do not provide a basis for federal habeas relief.See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
IV.
In sum, the court shall deny petitioner's application for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
IT IS THEREFORE ORDERED that petitioner's application for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. # 1) be hereby denied.
IT IS SO ORDERED.