(HC) Vibanco v. Hatton, 1:17-cv-00926

Background

In October 2010 petitioner Orlando Vibanco and Netisha Embry accepted a ride from Gabriel Ocon; an altercation occurred in Ocon’s two-door car during which Ocon was struck repeatedly with a pool cue and later hospitalized for several days.
Police found Ocon’s iPhone in Vibanco’s pocket, one piece of a broken pool cue near the scene and the other piece in the car; Ocon’s wallet was recovered but $200 was missing.
A Fresno County jury convicted Vibanco of battery with serious bodily injury and second‑degree robbery with a great‑bodily‑injury enhancement; he was sentenced to 32 years to life.
Vibanco sought federal habeas relief under 28 U.S.C. § 2254, alleging ineffective assistance of trial and appellate counsel and asserting actual innocence; state courts denied relief and the California Supreme Court summarily denied review.
The magistrate judge reviewed the claims under AEDPA deference, applied Strickland for ineffective‑assistance claims, and recommended denying the habeas petition, denying appointment of counsel, and declining a certificate of appealability.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
IAC — failure to challenge robbery sufficiency	Vibanco: counsel failed to press theory that he merely borrowed Ocon’s phone (no intent to steal).	Record shows counsel presented that theory at trial and in closing; argued insufficiency to jury.	Denied — counsel was not deficient; no prejudice shown.
IAC — failure to file a § 995 motion to set aside robbery charge	Vibanco: counsel should have moved to dismiss pre‑trial for lack of probable cause.	Preliminary hearing testimony supported probable cause; filing would likely have been futile.	Denied — strategic choice reasonable; no prejudice.
IAC — failure to present self‑defense	Vibanco: counsel did not advance self‑defense theory.	Trial record shows petitioner testified to self‑defense and counsel argued it to jury.	Denied — self‑defense was presented; no deficient performance.
IAC — allowing parole testimony	Vibanco: counsel erred by permitting officer to say he was on parole.	Counsel objected, moved to strike; prosecutor withdrew the question and the court instructed jury to disregard.	Denied — counsel acted appropriately; no prejudice from stricken testimony.
IAC on appeal — appellate counsel omitted IAC and innocence claims	Vibanco: appellate counsel failed to raise trial‑counsel IAC and actual innocence.	Appellate counsel need not raise frivolous or weak claims; underlying claims lacked merit so no prejudice.	Denied — no reasonable probability of a different result on appeal.
Freestanding actual innocence	Vibanco: he is actually innocent (borrowed phone; acted in self‑defense).	State: claim fails state law standard for newly discovered evidence; federal courts do not recognize freestanding innocence claims for habeas.	Denied — not cognizable as freestanding habeas claim and merits unsupported.
Motion for appointment of counsel	Vibanco: requested counsel for habeas proceedings.	No right to counsel in non‑capital habeas unless required for hearing/discovery or interests of justice; petitioner is able to articulate claims.	Denied — interests of justice do not require appointment.
Certificate of appealability (COA)	Vibanco: seeks leave to appeal denial.	COA requires substantial showing of a constitutional right; jurists could reasonably disagree.	Denied — petitioner failed to make substantial showing; COA not warranted.

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (1984) (two‑pronged deficient performance and prejudice test for IAC)
Harrington v. Richter, 562 U.S. 86 (2011) (AEDPA deference; "fair‑minded jurist" standard for § 2254(d))
Williams v. Taylor, 529 U.S. 362 (2000) (standards for federal habeas review under AEDPA)
Wilson v. Sellers, 138 S. Ct. 1188 (2018) (federal review looks to last reasoned state opinion)
McQuiggin v. Perkins, 569 U.S. 383 (2013) (limitation on freestanding actual innocence in habeas context)
Herrera v. Collins, 506 U.S. 390 (1993) (Supreme Court on non‑recognition of freestanding innocence claim)
Miller‑El v. Cockrell, 537 U.S. 322 (2003) (COA standard — substantial showing required)
Slack v. McDaniel, 529 U.S. 473 (2000) (clarifies COA standards)
Estelle v. McGuire, 502 U.S. 62 (1991) (federal habeas relief does not lie for errors of state law)
Jones v. Barnes, 463 U.S. 745 (1983) (appellate counsel not required to raise every nonfrivolous issue)