Antonio Lozano v. Ralph M. Diaz

MEMORANDUM

Petitioner Antonio Lozano appeals the district court’s denial of his 28 U.S.C. § 2254 habeas petition, challenging his California second-degree murder conviction. Because the state court did not make an unreasonable determination of the facts nor unreasonably apply clearly established federal law, we affirm. See 28 U.S.C. § 2254 (d). -

Petitioner was convicted under a felony murder theory, predicated on his felony charge for grossly negligent discharge of a firearm that could result in injury or death under California Penal Code § 246.8. Although the California Supreme Court’s decision in People v. Chun, 45 Cal.4th 1172 , 91 Cal.Rptr.3d 106 , 203 P.3d 425, 444 (2009), indicates that negligent discharge of a firearm merges with the killing so a charge under § 246.3 cannot support felony murder, that decision came out after Petitioner’s conviction was final. Chun changed the law because it overruled the California Supreme Court’s prior opinions in People v. Robertson, 34 Cal.4th 156 , 17 Cal.Rptr.3d 604 , 95 P.3d 872 (2004), and People v. Randle, 35 Cal.4th 987 , 28 Cal.Rptr.3d 725 , 111 P.3d 987 (2005), which were applicable when Petitioner’s conviction became final.…