(HC) Hernandez v. Allison

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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
ERIC HERNANDEZ,
Petitioner,
v.
KATHLEEN ALLISON,
Respondent.
No. 2:22-cv-2274-TLN-SCR
FINDINGS AND RECOMMENDATIONS
Petitioner is an incarcerated individual proceeding through counsel in this habeas corpus
action filed pursuant to 28 U.S.C. § 2254. 1 Petitioner challenges his 2019 conviction for criminal
threats, injuring a former cohabitant, driving or taking a vehicle without consent, and two
misdemeanor counts of vandalism. Upon consideration of the record and the applicable law, the
undersigned recommends denying petitioner’s habeas corpus application on the merits.
I. 	Factual and Procedural History
On November 28, 2018, a criminal complaint filed in Amador County Superior Court
initially charged petitioner with three separate felonies and two misdemeanors. ECF No. 8-3 at
12-15. Following a preliminary hearing, a criminal information filed on December 20, 2018
charged him with five felonies and two misdemeanors. ECF No. 8-3 at 26-30. After a jury trial,
1 The habeas petition was filed pro se, but counsel entered his appearance on behalf of petitioner
on June 2, 2023 before filing a traverse. See ECF No. 10.

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petitioner was convicted of making criminal threats, injuring his girlfriend, driving or taking a
vehicle without consent, all felonies, and two misdemeanor counts of vandalism. ECF No. 8-3 at
141, 150-151, 153, 155 (verdict forms). The jury acquitted petitioner of second degree burglary
of a vehicle and a separate count of injuring his girlfriend. ECF No. 8-3 at 152, 154. The court
sentenced petitioner to an indeterminate term of 25 years to life. ECF No. 8-3 at 191-194 (Felony
Abstract of Judgment). The misdemeanor sentences were run concurrently to the felony term.
ECF No. 8-3 at 195.
Petitioner does not contest the state courts’ recitation of facts nor the sufficiency of the
evidence supporting any of the counts for which he was convicted. Therefore, the undersigned
presumes that the California Court of Appeal’s summary of the evidence is accurate and
reproduces it here.2
Prosecution Evidence
[Petitioner]3 and his girlfriend, Vanessa G., lived together with
Vanessa’s friend, M.R. 	In October 2017, [petitioner] and M.R.
began a secret affair despite [petitioner]’s continuing relationship
with Vanessa. [Petitioner] and M.R. both moved out of the residence
around July 2018 and continued their affair without Vanessa’s
knowledge.
[Petitioner] and M.R. had an argument about the fact that Vanessa,
rather than M.R., had purchased bus tickets for [petitioner]’s children
to visit from Los Angeles. M.R. testified that she found out from the
Greyhound Web site that Vanessa purchased the tickets. She stated
that she did not use a password or a confirmation code to get that
information.
In mid-August 2018, M.R. loaned [petitioner] her 2002 Ford Taurus.
On September 12, 2018, M.R. told [petitioner] on the phone that she
wanted it back. She said she would report it stolen if he did not return
it. [Petitioner] became angry and said he was “coming up” to talk.
M.R. said “no, don’t come up here.”
[Petitioner] went to M.R.’s house around 11:00 p.m. on September
12, 2018. [Petitioner] let himself into the house and went to M.R.’s
bedroom. They began arguing. He called her names, and when she
2 See 28 U.S.C. § 2254(e)(1) (emphasizing that “a determination of a factual issue made by a
State court shall be presumed to be correct” unless the petitioner rebuts it by clear and convincing
evidence).
3 For clarity sake, the California Court of Appeal’s reference to “defendant” has been modified to
“petitioner” to reflect the current procedural posture of this case. The changes are indicated in
brackets.

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got up to leave, he hit her. 	He closed the door, pushed her on the
bed, and hit her with both an open hand and a closed fist. [Petitioner]
pushed M.R. onto the bed and placed his hands around M.R.’s neck,
squeezing her until she “wasn’t able to breathe.” Around this time,
[petitioner] told M.R. “I’m going to fucking kill you.”
M.R. believed that [petitioner] would carry out his threat. M.R. tried
to fight back, scratching his face. 	He choked her until she lost
consciousness. When M.R. regained consciousness, [petitioner] was
sitting on the floor of her room. 	[Petitioner] continued calling her
names.
That night, [petitioner] broke nearly everything in her room. In an
enraged state, [petitioner] broke a television stand after throwing it
against the wall. He pulled a fan out of the wall and threw it across
the room; he pulled bins from M.R.’s dresser and threw her clothing
all over the room; he broke some of her shoes and bras. 	As
[petitioner] destroyed the items in her room, M.R. sat on the bed,
crying, and asking him why he was doing this. He told her it was all
her fault. [Petitioner] demanded that M.R. give him her phone when
he heard a message notification. M.R. refused because she needed
her phone in case she would be notified that her pregnant sister went
into labor. 	[Petitioner] told M.R. that if she didn’t give him the
phone, her unborn niece “wouldn’t see past two weeks.” [Petitioner]
was at M.R.’s house for about three hours. 	M.R. testified that she
was afraid of him “[t]he whole night.” 	From the time that she
regained consciousness after he strangled her, M.R. looked for a way
to leave.
At some point in the night, [petitioner] pulled M.R.’s hair, ripping a
chunk of it out. 	He heated a barbecue lighter, said, “I’m going to
make you remember me,” and held the hot lighter to her hand,
burning her. [Petitioner] taunted M.R. throughout the night, slapping
her on the top of the head with an open hand. He pinned her down
on the bed, holding her by the arms so hard that he left bruises. As a
result of [petitioner]’s physical assault, M.R. had visible bruising on
her arms and neck for several weeks.
M.R. escaped the house by pretending to check the property for a
possible trespasser. 	[Petitioner] left the property in M.R.’s Ford
Taurus. 	M.R. drove to the Jackson Rancheria Casino to talk with
L.S. (M.R.’s landlord & roommate). 	She then drove to a hospital
parking lot where she thought about what had happened.
A couple hours after she left her house, M.R. realized that [petitioner]
had left his phone in her room. 	After calling him at his mother’s
house (where [petitioner] was living at the time), M.R. noted that
[petitioner] was no longer enraged. She decided to take his phone to
him around 3:00 a.m. 	When M.R. got to [petitioner]’s mother’s
house, they discussed what had happened. 	He started “loving on”
M.R., told her that “if [she] didn’t get him so mad, he wouldn’t react
like this.” [Petitioner] and M.R. had sex in the garage.
Before M.R. left, [petitioner] pulled out the title to the Ford Taurus,
held her by the back of the neck, and told M.R. to sign it over to him.

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She had kept the title in a safe at her house, and although she never
gave the title to [petitioner], he knew where she kept the key to the
safe. As [petitioner] continued holding her by the back of the neck,
M.R. dated the title, started signing the first letter of her first name,
and then decided not to sign it. She dropped the title on the ground
and left, going back to her home. She did not take the title with her
because “[t]hat would just give him another reason to come after
me.”
On September 13, [petitioner] asked M.R. to buy his son a video
game. 	She did, and then dropped it off at [petitioner]’s work. 	On
September 24, M.R. picked up [petitioner] from work and he paid
her for his half of the telephone bill.
On September 26, M.R. met [petitioner] in a Save Mart parking lot,
with plans for [petitioner] to return the phone that M.R. had given
him, and M.R. was going to give him his money back from his half
of the phone bill. 	During the exchange, the two began arguing.
[Petitioner] held her against the side of her car, squeezing her upper
arms hard enough that he left bruises. He also tried to kiss her. M.R.
and [petitioner] went to Reno together on September 29, 2018, to
attend Street Vibrations. They rented a hotel room in Carson City.
On September 30, 2018, [petitioner] asked M.R. if he could see her.
She told him, “I don’t need to see you anymore, you don’t need to
see me anymore, let’s just leave it there.” M.R. was napping at home
when she heard L.S. yelling at someone to get off the property. 	It
turned out to be [petitioner]. 	L.S. called for M.R., and M.R. went
outside. There was glass from M.R.’s car’s windows on the ground.
M.R. sought a restraining order against [petitioner] on October 3,
2018. 	She did not mention in her application that [petitioner] had
threatened to kill her on September 12.
[Petitioner] had a prior history of domestic violence. In May 2018,
petitioner pled no contest to a misdemeanor count of injuring a
spouse or cohabitant. 	That incident involved Vanessa who was
photographed by police officers with bruising on her cheek.
Defense Evidence
[Petitioner]’s mother testified that she did not notice any scratches
on [petitioner]’s face on September 13, 2018.
Vanessa testified that [petitioner] was still her boyfriend, and that he
did not have scratches on his face on September 13, 2018. She also
testified that she purchased Greyhound bus tickets for [petitioner]’s
children to visit, wrote the confirmation down, and gave it to
[petitioner]. She was unable to check on the status of the reservations
without using a confirmation number. 	Vanessa also denied that
[petitioner] hit her in April 2018, despite reporting it to the police.
Defense investigator Kimberly Barraza testified that she researched
the Greyhound Web site and was unable to access any reservation
information without both a last name and confirmation number.

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ECF No. 8-10 at 2-5.
On direct appeal, the California Court of Appeal affirmed the judgment but struck
petitioner’s one year prison term enhancement, resulting in a 25 to life sentence. ECF No. 8-10.
The California Supreme Court denied a petition for review on October 13, 2021. ECF No. 8-12.
Petitioner filed his § 2254 application in this court on December 20, 2022. ECF No. 1. In
his only claim for relief, petitioner contends that the trial court erred by failing to instruct the jury
sua sponte on the law of attempted criminal threats as a lesser included offense of the count of
making criminal threats. He alleges that this violated his Fifth, Sixth, and Fourteenth Amendment
rights as well as Beck v. Alabama, 447 U.S. 625 (1980).
Respondent filed an answer asserting that petitioner’s claim for relief does not raise a
cognizable federal question because there is no clearly established federal law requiring lesser
included offense instructions in non-capital trials. ECF No. 9 at 10-11 (citing Windham v.
Merkle, 163 F.3d 1092, 1106 (9th Cir. 1998)). Moreover, respondent points out that defense
counsel did not request a jury instruction on attempted criminal threats in this case. ECF No. 9 at
10. Even assuming that the constitution requires lesser included offense instructions, the
evidence did not support giving one for attempted criminal threats. Id. at 11. As a result, the
California Court of Appeal’s denial of relief on this basis was not unreasonable and therefore
does not entitle petitioner to habeas relief. Id.
In his counseled traverse, petitioner “agrees with Respondent that a state trial court’s
failure to instruct on a lesser included offense in a noncapital case does not, by itself, present a
federal constitutional claim.” ECF No. 13 at 4 (citing Solis v. Garcia, 219 F.3d 922, 929 (9th Cir.
2000) (per curiam)). However, petitioner argues that, in this case, due process required the trial
court to sua sponte instruct the jury on attempted criminal threats because it constituted
petitioner’s theory of defense. Id. Petitioner argued during closing that the victim was not in
sustained fear to support the charge of making criminal threats based on her actions after
petitioner left her house that night and in the following days and weeks. ECF No. 13 at 5. Based
on this post-offense evidence of a continuing relationship between petitioner and the victim,
petitioner submits that the state court’s determination that there was not substantial evidence to

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support an instruction on attempted criminal threats was unreasonable. ECF No. 13 at 6.
II. 	AEDPA Standard of Review
To be entitled to federal habeas corpus relief, petitioner must affirmatively establish that
the state court decision resolving the claim on the merits “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme Court
of the United States[.]” 28 U.S.C. § 2254(d)(1). The “contrary to” and “unreasonable
application” clauses of § 2254(d)(1) are distinct, as the Supreme Court has explained:
A federal habeas court may issue the writ under the “contrary to”
clause if the state court applies a rule different from the governing
law set forth in our cases, or if it decides a case differently than we
have done on a set of materially indistinguishable facts. The court
may grant relief under the “unreasonable application” clause if the
state court correctly identifies the governing legal principle from our
decisions but unreasonably applies it to the facts of the particular
case. The focus of the latter inquiry is on whether the state court’s
application 	of 	clearly 	established 	federal 	law 	is 	objectively
unreasonable, and we stressed in Williams [v. Taylor, 529 U.S. 362
(2000)], that an unreasonable application is different from an
incorrect one.
Bell v. Cone, 535 U.S. 685, 694 (2002).
“A state court’s determination that a claim lacks merit precludes federal habeas relief so
long as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.”
Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652,
664 (2004)). Accordingly, “[a]s a condition for obtaining habeas corpus from a federal court, a
state prisoner must show that the state court’s ruling on the claim being presented in federal court
was so lacking in justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103.
The phrase “clearly established Federal law” in § 2254(d)(1) refers to the “governing legal
principle or principles” previously articulated by the Supreme Court. Lockyer v. Andrade, 538
U.S. 63, 71-72 (2003). Clearly established federal law also includes “the legal principles and
standards flowing from precedent.” Bradley v. Duncan, 315 F.3d 1091, 1101 (9th Cir. 2002)
(quoting Taylor v. Withrow, 288 F.3d 846, 852 (6th Cir. 2002)). Only Supreme Court precedent
may constitute “clearly established Federal law,” but circuit law has persuasive value regarding

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what law is “clearly established” and what constitutes “unreasonable application” of that law.
Duhaime v. Ducharme, 200 F.3d 597, 600 (9th Cir. 2000); Robinson v. Ignacio, 360 F.3d 1044,
1057 (9th Cir. 2004).
Relief is also available under the AEDPA where the state court predicates its adjudication
of a claim on an unreasonable factual determination. 28 U.S.C. § 2254(d)(2). The statute
explicitly limits this inquiry to the evidence that was before the state court. See Cullen v.
Pinholster, 563 U.S. 170 (2011). Under § 2254(d)(2), factual findings of a state court are
presumed to be correct subject only to a review of the record which demonstrates that the factual
finding(s) “resulted in a decision that was based on an unreasonable determination of the facts in
light of the evidence presented in the state court proceeding.” “[U]nreasonable” in § 2254(d)(2)
is interpreted in the same manner as that word as it appears in § 2254(d)(1) – i.e., the factual error
must be so apparent that “fairminded jurists” examining the same record could not abide by the
state court factual determination. A petitioner must show clearly and convincingly that the
factual determination is unreasonable. See Rice v. Collins, 546 U.S. 333, 338 (2006).
If petitioner meets either of the § 2254(d) standards, then the federal habeas court reviews
the merits of the constitutional claim “by considering de novo the constitutional issues raised[,]”
i.e., without the deference AEDPA otherwise requires. Frantz v. Hazey, 533 F.3d 724 (9th Cir.
2008) (en banc). However, in certain circumstances that “second inquiry” will not be necessary if
the court’s holding on the § 2254(d) standard shows that the de novo constitutional standard “is
satisfied as well.” Id. at 736.
III. 	Analysis
The parties agree that there is no clearly established federal law requiring a state trial court
to instruct the jury on a lesser included offense in a non-capital case. See Beck v. Alabama, 447
U.S. 625 (1980) (holding that a capital jury was required to be instructed on the lesser included
offense because “death is different”). Moreover, it has long been established in the Ninth Circuit
that the failure of a state court to instruct on a lesser included offense does not present a federal
constitutional question and therefore cannot provide a basis for habeas relief. See Bashor v.
Riley, 730 F.2d 1228 (9th Cir. 1984). This absence of such clearly established federal law

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precludes habeas corpus relief in this case. See Carey v. Musladin, 549 U.S. 70, 77 (2006).
Even construed as a due process claim based on the denial of his right to a jury instruction
on his theory of defense, petitioner is not entitled to habeas relief in this case because the
evidence did not require the trial court to sua sponte instruct on attempted criminal threats. See
Bashor, 730 F.2d at 1240 (recognizing that a “criminal defendant is also entitled to adequate
instructions on his or her theory of defense”). Defense counsel argued in closing that petitioner
was not guilty of making criminal threats because the victim was not in sustained fear, as
demonstrated by her decision to communicate with petitioner and meet with petitioner in the early
morning hours following the incident. See ECF No. 8-2 at 291-293 (Reporter’s Transcript).
However, the jury necessarily rejected that argument by finding the sustained fear element
established beyond a reasonable doubt. The California Court of Appeal denied relief, finding that
the victim’s testimony established:
[T]hat she heard [petitioner] threaten her, she understood the threat, she believed that the
[petitioner] was capable of carrying out the threat, and she suffered sustained fear of
[petitioner] beyond what is momentary, fleeting, or transitory. The victim’s testimony
about the incident at the house and her subsequent conduct in seeing [petitioner] after the
incident at the house is not in direct conflict, and any suggestion that the victim was not in
sustained fear during the relevant time period is completely unsupported by any evidence
pertaining to that particular issue.
ECF No. 8-10 at 9-10. The California Court of Appeal further found the evidence “did not
warrant instruction on the lesser included offense because M.R. had already suffered sustained
fear for hours – a duration clearly sufficient for the element of fear set forth in [Penal Code]
section 422.” Id. at 11 (emphasis in original). The undersigned has reviewed the trial evidence in
this case and finds that—assuming a federal due process right to a jury instruction on the
defendant’s theory is clearly established—the state court’s denial of relief based on a lack of
substantial evidence to support the lesser offense of attempted criminal threats was not
objectively unreasonable.4 See, e.g., Solis, 219 F.3d at 929-30 (finding no constitutional error in
4 A federal habeas court looks to the last reasoned state court decision in applying the § 2254(d)
standard. See Wilson v. Sellers, 584 U.S. 122 (2018) (adopting the Ylst look-through
presumption of silent state court denials of relief even after the decision in Harrington v. Richter,
562 U.S. 86 (2011)); see also Ylst v. Nunnemaker, 501 U.S. 797 (1991). Thus, this court “looks
through” the subsequent silent denial by the California Supreme Court and reviews the California
Court of Appeal’s decision for objective reasonableness under 28 U.S.C. § 2254(d).

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failure to instruct as to voluntary and involuntary manslaughter at a trial where the petitioner was
convicted of murder and the state courts found the evidence implied that petitioner had acted with
malice). For these reasons, the undersigned recommends denying petitioner’s habeas corpus
application.
Accordingly, IT IS RECOMMENDED that petitioner’s application for a writ of habeas
corpus be denied.
These findings and recommendations are submitted to the United States District Judge
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty one days
after being served with these findings and recommendations, any party may file written
objections with the court and serve a copy on all parties. Such a document should be captioned
“Objections to Magistrate Judge’s Findings and Recommendations.” In his objections petitioner
may address whether a certificate of appealability should issue in the event he files an appeal of
the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district
court must issue or deny a certificate of appealability when it enters a final order adverse to the
applicant). A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the applicant
has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(3).
Any response to the objections shall be served and filed within fourteen days after service of the
objections. The parties are advised that failure to file objections within the specified time may
waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.
1991).
DATED: January 7, 2026