Fernando Zavala v. Terri Gonzalez , 537 F. App'x 684 ( 2013 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 07 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FERNANDO ZAVALA, No. 10-56949
Petitioner - Appellant, D.C. No. 2:08-cv-07589-DMG-
VBK
v.
TERRI GONZALEZ, Warden, MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Argued and Submitted July 9, 2013
Pasadena, California
Before: BENAVIDES,** BYBEE, and NGUYEN, Circuit Judges.
Fernando Zavala appeals from the district court’s denial of his federal
habeas corpus petition. In his habeas petition, Zavala argued that the state trial
court violated his Sixth and Fourteenth Amendment rights to due process and a fair
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Fortunato P. Benavides, Senior Circuit Judge for the
U.S. Court of Appeals for the Fifth Circuit, sitting by designation.
trial by failing to instruct the jury on voluntary intoxication as a consideration
relevant to the specific intent elements of the charged offense of criminal threats
under California Penal Code § 422. We have jurisdiction under 28 U.S.C. §§ 1291and 2253, and we affirm.
The government argues that Zavala has failed to exhaust his constitutional
claims in state court. Although the government is correct that Zavala’s claims were
not fairly presented before the California courts because he raised only the issue of
instructional error on state-law grounds, and did not indicate any independent
federal constitutional basis for his claim, see Baldwin v. Reese, 541 U.S. 27, 30-32
(2004); Castillo v. McFadden, 399 F.3d 993, 998-99 (9th Cir. 2005), AEDPA
requires a petitioner to exhaust only “remedies still available at the time of the
federal petition,” Franklin v. Johnson, 290 F.3d 1223, 1231 (9th Cir. 2002); see
also 28 U.S.C. § 2254(b)(1)(A). “If a petitioner failed to present his claims in state
court and can no longer raise them through any state procedure, state remedies are
no longer available, and are thus exhausted.” Franklin, 290 F.3d at 1231; see also
Slovik v. Yates, 556 F.3d 747, 751 n.4 (9th Cir. 2009). Here, Zavala cannot return
to state court to raise his claims because they would be time-barred. See In re
Clark, 855 P.2d 729, 760 (Cal. 1993) (“[A]bsent justification for the failure to
present all known claims in a single, timely petition for writ of habeas corpus,
2
successive and/or untimely petitions will be summarily denied.”); see also Walker
v. Martin, 131 S. Ct. 1120, 1128-30 (2011); cf. In re Robbins, 959 P.2d 311, 317
(Cal. 1998) (explaining that claims filed more than 90 days after the filing of the
reply brief in direct appeal in capital cases are presumptively untimely). Zavala’s
claims are thus technically exhausted. See Franklin, 290 F.3d at 1231. Although
such technically exhausted claims may also be procedurally defaulted, see
Coleman v. Thompson, 501 U.S. 722, 732, 735 n.1 (1991); Smith v. Baldwin, 510
F.3d 1127, 1139 (9th Cir. 2007) (en banc), the government did not raise the issue
of procedural default before the district court and has thus forfeited the issue, see
Franklin, 290 F.3d at 1229-31.
As to the merits of Zavala’s constitutional claims, the government argues
that the Teague retroactivity principle bars review. See Horn v. Banks, 536 U.S.
266, 271-72 (2002) (per curiam). We conclude that Teague does not bar review.
Zavala’s claims would not require an application of a “new rule” under Ninth
Circuit precedent. See Butler v. Curry, 528 F.3d 624, 635 n.10 (9th Cir. 2008). We
have previously held that a state court’s “failure to correctly instruct the jury on [a]
defense may deprive the defendant of his due process right to present a defense.”
Bradley v. Duncan, 315 F.3d 1091, 1099 (9th Cir. 2002); see also Conde v. Henry,
198 F.3d 734, 739-40 (9th Cir. 2000).
3
However, even if we were to conclude that there was constitutional error in
this case,1 any potential error was harmless. In conducting harmless error review,
“we apply the Brecht test without regard for the state court’s harmlessness
determination.” Merolillo v. Yates, 663 F.3d 444, 455 (9th Cir. 2011); see also Fry
v. Pliler, 551 U.S. 112, 121-22 (2007). We conclude that, under Brecht, any error
in failing to instruct the jury on voluntary intoxication in this case did not have a
“substantial and injurious effect or influence in determining the jury’s verdict.”
Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).
Zavala’s primary strategy at trial was not to assert a defense of voluntary
intoxication, but rather to deny that he had ever threatened or assaulted Ozkan.
Moreover, voluntary intoxication is not an affirmative defense in California, see
People v. Horton, 906 P.2d 478, 509 (Cal. 1995); People v. Reyes, 52 Cal. App. 4th
975, 982-83 (Ct. App. 1997), and to the extent that it was relevant to the specific
intent element of criminal threats under California Penal Code § 422, there was
overwhelming evidence demonstrating that Zavala intended to threaten Ozkan and
1
As we noted in Slovik, 556 F.3d at 751 n.4, the standard of review that
applies to claims that were not raised before the state court, but are technically
exhausted, is unclear. Compare, e.g., Franklin, 290 F.3d at 1233 (applying
AEDPA’s deferential standard), with, e.g., Chaker v. Crogan, 428 F.3d 1215,
1220–21 (9th Cir. 2005) (applying de novo review). We need not resolve any
tension between these cases because, even if there is constitutional error, any error
is harmless under Brecht.
4
made the threat “with the specific intent that the statement . . . be taken as a threat,”
People v. Garrett, 30 Cal. App. 4th 962, 966 (Ct. App. 1994) (emphasis omitted).
Zavala repeatedly threatened to kill Ozkan, pointed a gun at him, and fired several
times. “[T]he guilty verdict actually rendered in [Zavala’s] trial was[, thus,] surely
unattributable to the error.” Sullivan v. Louisiana, 508 U.S. 275, 279 (1993).
AFFIRMED.
5