Rodney Barnes v. Terri Gonzales

Filing 22

AMENDED MEMORANDUM OPINION AND ORDER DENYING PETITION AND DISMISSING ACTION WITH PREJUDICE by Magistrate Judge Jean P Rosenbluth: (See document for details.) IT THEREFORE IS ORDERED that Judgment be entered denying the Petition and dismissing this action with prejudice. (wr)

O

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11

RODNEY BARNES,

12
13
14
15

Petitioner,
vs.
TERRI GONZALES, Warden,
Respondent.

16
17
18

)
)
)
)
)
)
)
)
)
)

Case No. CV 12-2076-JPR
AMENDED*
MEMORANDUM OPINION AND ORDER
DENYING PETITION AND DISMISSING
ACTION WITH PREJUDICE

PROCEEDINGS
On March 12, 2012, Petitioner filed a Petition for Writ of

19 Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C.
20 § 2254, raising four claims for relief.

On May 14, 2012,

21 Respondent filed an Answer with an attached memorandum.
22 Petitioner did not file a reply.

The parties consented to the

23 jurisdiction of the undersigned U.S. Magistrate Judge pursuant to
24 28 U.S.C. § 636(c).

For the reasons discussed below, the Court

25 denies the Petition and dismisses this action with prejudice.
26

BACKGROUND

27

On November 5, 2009, Petitioner was convicted by a Los

28 Angeles County Superior Court jury of second-degree commercial
1
* Document is amended to add missing sentence inadvertently left
out of the "Background" section.

1 burglary, in violation of California Penal Code section 459, and
2 forgery, in violation of section 476.
3 Tr. at 43-44.)

The trial court sentenced Petitioner to four

4 years in prison.
5

(Lodgment 12, 1 Clerk’s

(Id. at 152-57.)

Petitioner appealed, raising claims corresponding to claims

6 one through three and subclaim (A) of claim four in the Petition.
7 (Lodgment 1.)

On May 19, 2011, the court of appeal affirmed his

8 convictions and sentence.

(Lodgment 4.)

Petitioner then filed a

9 Petition for Review in the state supreme court, which that court
10 summarily denied on August 31, 2011.
11

(Lodgments 5, 6.)

While his direct appeal was pending in the court of appeal,

12 Petitioner filed a habeas petition in the same court, raising
13 subclaim (B) of claim four.

(Lodgment 7.)

On May 19, 2011, the

14 court of appeal denied the petition in a reasoned decision.
15 (Lodgment 8.)

Petitioner raised the same claim in a habeas

16 petition in the state supreme court, which summarily denied it on
17 August 31, 2011.
18
19

(Lodgments 9, 10.)
PETITIONER’S CLAIMS

I.

The trial court violated due process and Petitioner’s

20 constitutional right to confront witnesses by admitting into
21 evidence a purportedly fake invoice given by defense counsel to
22 the prosecutor before trial.
23

II.

(Pet. at 5.)

The trial court violated due process by denying

24 Petitioner’s motion to reopen the proceedings at the end of trial
25 to allow him to testify.
26

(Id.)

III. The prosecutor committed misconduct by commenting in

27 closing argument on Petitioner’s failure to testify, in violation
28 of Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed.
2

1 2d 106 (1965).
2

IV.

(Pet. at 5-6.)

Trial counsel was constitutionally ineffective for

3 failing to (A) object to the alleged Griffin error or (B)
4 authenticate the fake invoice given to her by Petitioner, which
5 was subsequently admitted at trial to inculpate him.

(Id. at 6.)

6

SUMMARY OF THE EVIDENCE

7

The factual summary set forth in a state appellate court

8 opinion is entitled to a presumption of correctness pursuant to
9 28 U.S.C. § 2254(e)(1).

See Vasquez v. Kirkland, 572 F.3d 1029,

10 1031 n.1 (9th Cir. 2009).

Because Petitioner does not challenge

11 the sufficiency of the evidence, the Court adopts the following
12 statement of facts from the California Court of Appeal opinion on
13 direct appeal as a fair and accurate summary of the evidence
14 presented at trial.1
15

On July 23, 2008, [Petitioner] entered a bank in

16

Lancaster, handed the teller a check, and asked to have

17

it cashed.

18

on

19

Robertson’s. The check is not genuine: it lacks security

20

features, such as a border, colored background, invisible

21

fibers, and a special type font.

22

issued checks that look like the one that [Petitioner]

23

sought to negotiate, and [Petitioner]’s check bore a

24

serial number that was not used by Robertson’s.

25

the

The check proffered by [Petitioner] is drawn

account

of

a

concrete

manufacturer

called

Robertson’s never

When [Petitioner] handed over the check, the bank

26
27
1

The Court has nonetheless independently reviewed the

28 state-court record.

3

1

teller became suspicious because the texture of the paper

2

and the ink looked like something printed on a home

3

computer. (The teller received training from the bank to

4

help him identify fraudulent checks.)

5

not have an account at the bank, so the teller asked for

6

identification and placed imprints of [Petitioner]’s

7

finger on the check.

8

computerized processing system, it generated an alert.

9

The teller directed [Petitioner] to wait in the lobby

10

[Petitioner] did

When the check was run through a

while he verified the transaction with a supervisor.

11

While

[Petitioner]

waited,

a

bank

manager

12

investigated the veracity of [Petitioner]’s check.

13

located photocopies of Robertson’s genuine checks, and

14

saw that the characteristics of those checks are entirely

15

different from the one presented by [Petitioner].

16

telephoned Robertson’s to confirm that the check was

17

fraudulent, then contacted the bank’s corporate security

18

department and the sheriff’s department. He noticed that

19

[Petitioner] was fidgety and looked around nervously.

20

After a while, [Petitioner] departed the bank without a

21

word, leaving behind his identification and the check.

He

He

22

Two hours later, [Petitioner] reappeared at the

23

bank, approached the teller window, and asked for the

24

return of the check and his identification.

25

manager — who by then knew that the check was fraudulent

26

—

27

department arrived, and asked [Petitioner] why he had the

28

check. [Petitioner], who still seemed nervous, described

tried

to

stall

[Petitioner]

4

until

the

The bank

sheriff’s

1

it as a payroll check and said that he had to leave for

2

an appointment.

3

identification or the check, [Petitioner] turned around

4

and left. [Petitioner] did not seem surprised or shocked

5

that the bank refused to cash the check.

When the manager refused to return the

6

After [Petitioner] departed (for the second time),

7

a customer turned in a wallet that was left on the

8

counter at the bank.

9

bearing [Petitioner]’s name, and a business card from the

The wallet contained an ATM card

10

California Department of Corrections.

11

not

12

identification, or the check.

13

CDC card was [Petitioner]’s parole officer.

14

return

to

the

bank

to

claim

[Petitioner] did
his

wallet,

his

The person listed on the

The deputy sheriff assigned to the case has special

15

training to detect check fraud.

16

relatively simple to produce the kind of check that

17

[Petitioner] attempted to negotiate. The check stock and

18

check-writing software can be purchased at a business

19

supply store or online.

20

Robertson’s that the check tendered by [Petitioner] is

21

fraudulent.

22

believes that the check was produced on a home computer,

23

although the identity of its creator is unknown.

24

Based

on

He testified that it is

The deputy confirmed with

the

deputy’s

experience,

he

The parties stipulated that [Petitioner] sent a

25

letter to the court, and it was read to the jury.

26

states, “My family is really suffering due to a bad check

27

that was issued to me for my labor, and I had no idea it

28

was

bad.

I

actually

furnished
5

the

bank

with

It

my

1

California identification card, three fingerprints, and

2

waited for over a half an hour.

3

should prove I had no knowledge whatsoever whether the

4

check was genuine or not.”

So that, in itself,

5 (Lodgment 4 at 2-3 (footnote omitted).)
6
7

STANDARD OF REVIEW
Under 28 U.S.C. § 2254(d), as amended by the Antiterrorism

8 and Effective Death Penalty Act of 1996 (“AEDPA”):
9

An application for a writ of habeas corpus on behalf of

10

a person in custody pursuant to the judgment of a State

11

court shall not be granted with respect to any claim that

12

was adjudicated on the merits in State court proceedings

13

unless the adjudication of the claim — (1) resulted in a

14

decision

15

unreasonable application of, clearly established Federal

16

law, as determined by the Supreme Court of the United

17

States; or (2) resulted in a decision that was based on

18

an unreasonable determination of the facts in light of

19

the evidence presented in the State court proceeding.

20

Under AEDPA, the “clearly established Federal law” that

that

was

contrary

to,

or

involved

an

21 controls federal habeas review of state-court decisions consists
22 of holdings of Supreme Court cases “as of the time of the
23 relevant state-court decision.”

Williams v. Taylor, 529 U.S.

24 362, 412, 120 S. Ct. 1495, 1523, 146 L. Ed. 2d 389 (2000).
25

Although a particular state-court decision may be both

26 “contrary to” and “an unreasonable application of” controlling
27 Supreme Court law, the two phrases have distinct meanings.
28 at 391, 413.

Id.

A state-court decision is “contrary to” clearly
6

1 established federal law if it either applies a rule that
2 contradicts governing Supreme Court law or reaches a result that
3 differs from the result the Supreme Court reached on “materially
4 indistinguishable” facts.

Early v. Packer, 537 U.S. 3, 8, 123 S.

5 Ct. 362, 365, 154 L. Ed. 2d 263 (2002).

A state court need not

6 cite or even be aware of the controlling Supreme Court cases, “so
7 long as neither the reasoning nor the result of the state-court
8 decision contradicts them.”
9

Id.

State-court decisions that are not “contrary to” Supreme

10 Court law may be set aside on federal habeas review only “if they
11 are not merely erroneous, but ‘an unreasonable application’ of
12 clearly established federal law, or based on ‘an unreasonable
13 determination of the facts’ (emphasis added).”

Id. at 11.

A

14 state-court decision that correctly identifies the governing
15 legal rule may be rejected if it unreasonably applies the rule to
16 the facts of a particular case.

Williams, 529 U.S. at 406-08.

17 To obtain federal habeas relief for such an “unreasonable
18 application,” however, a petitioner must show that the state
19 court’s application of Supreme Court law is “objectively
20 unreasonable.”

Id. at 409-10.

In other words, habeas relief is

21 warranted only if the state court’s ruling is “so lacking in
22 justification that there was an error well understood and
23 comprehended in existing law beyond any possibility for
24 fairminded disagreement.”

Harrington v. Richter, 562 U.S. ___,

25 131 S. Ct. 770, 786-87, 178 L. Ed. 2d 624 (2011).
26

Here, Petitioner raised claims one through three and

27 subclaim (A) of claim four on direct appeal, and he raised
28 subclaim (B) of claim four on habeas review (Lodgments 1, 7); the
7

1 court of appeal rejected all of those claims in reasoned
2 decisions issued on May 19, 2011 (Lodgments 4, 8), except that it
3 did not address Petitioner’s Confrontation Clause argument in
4 claim one (Lodgment 1 at 19; Lodgment 5 at 15).

Subsequently,

5 the California Supreme Court summarily denied his Petition for
6 Review and habeas petition.

(Lodgments 5, 6, 9, 10.)

Thus, the

7 Court “looks through” the state supreme court’s silent denials to
8 the last reasoned decisions as the bases for the state court’s
9 judgment.

See Ylst v. Nunnemaker, 501 U.S. 797, 803-04, 111 S.

10 Ct. 2590, 2595, 115 L. Ed. 2d 706 (1991) (holding that California
11 Supreme Court, by its silent denial of petition for review,
12 presumably did not intend to change court of appeal’s analysis);
13 Bonner v. Carey, 425 F.3d 1145, 1148 n.13 (9th Cir. 2005)
14 (applying look-through doctrine to state habeas petitions).

The

15 Court reviews Petitioner’s claims that were adjudicated by the
16 state courts under the deferential AEDPA standard of review.
17 Richter, 131 S. Ct. at 784.

See

The Court reviews the Confrontation

18 Clause subclaim in claim one de novo because it was not addressed
19 by the state courts even though Petitioner presented it to them
20 (see Lodgment 1 at 19; Lodgment 5 at 15).

See Cone v. Bell, 556

21 U.S. 449, 472, 129 S. Ct. 1769, 1784, 173 L. Ed. 2d 701 (2009).
22

DISCUSSION

23 I.

Habeas relief is not warranted on Petitioner’s evidentiary

24

claim

25

Petitioner contends that the trial court violated his

26 constitutional rights to due process and to confront witnesses by
27 admitting a purportedly fake invoice given by defense counsel to
28 the prosecutor before trial.

(Pet. at 5.)
8

1

A.

2

The Court has independently verified and accordingly adopts

Background

3 the court of appeal’s factual summary regarding Petitioner’s
4 evidentiary claim:
5

After

the

preliminary

hearing

in

this

matter,

6

defense counsel handed a document marked “invoice” to the

7

prosecutor, Rachel Bowers.[FN2]

8

the exact words spoken by defense counsel; however, she

9

testified at trial that the invoice was presented to her

10

as “a receipt that was given to the defendant for

11

services rendered.”

12

handwritten name at the top; indicates that four bedrooms

13

were painted at an address on East Lancaster Blvd.; and

14

the

15

investigation,

16

theatre/auto audio business known as California Sound

17

Works, which does not have bedrooms and has not painted

18

its premises in the last six years. Robertson’s does not

19

operate

20

production, not house painting.

service

in

was
the

Bowers did not recall

The invoice contains Robertson’s

“sold

by”

address

Lancaster,

and

[Petitioner].
proved

its

to

business

be

is

Upon
a

home

concrete

21

[FN2]

22

At trial, [Petitioner] sought to have the invoice

23

excluded from evidence, ostensibly because any testimony

24

from Bowers about the provenance of the invoice was

25

hearsay.

26

relevant to prove [Petitioner]’s guilty state of mind

27

because the invoice was — like the check [Petitioner]

28

tried

to

A different prosecutor handled the trial.

The prosecution contended that the invoice was

negotiate

—

fake.
9

[Petitioner]’s

counsel

1

conceded that she gave Bowers the invoice, saying that it

2

was a receipt for work performed by [Petitioner].

3 (Lodgment 4 at 4.)

The trial court denied Petitioner’s motion to

4 exclude the invoice, finding that if the prosecutor could
5 properly “lay the foundation” while questioning Bowers, the
6 invoice would be admissible as an admission by a party opponent.
7 (Lodgment 11, 2 Rep.’s Tr. at 606-07.)
8

The court of appeal rejected Petitioner’s claim:

9

[Petitioner] now argues that no foundation was laid

10

for admission of the invoice, reasoning that “it is

11

unknown when the invoice was created, who authored the

12

document, the intent of the author at the time the

13

document was drafted, or whether the document was for

14

services rendered in this case or some other job on some

15

other date.”

16

invoice was not admitted as true documentation of an

17

actual transaction to paint four bedrooms.

18

was admitted to show [Petitioner]’s consciousness of

19

guilt:

20

[Petitioner] of the criminal charges, to convince the

21

prosecutor

22

legitimately received the check from Robertson’s as

23

remuneration for his services.

24

(2010) 49 Cal. 4th 846, 921 [fabrication of exculpatory

25

evidence shows consciousness of guilt].)

26

prosecution was not trying to prove that this was a

27

genuine invoice, no authentication was required.

28

A

the

[Petitioner]’s argument is misplaced.

invoice

that

was

fabricated

[Petitioner]

reasonable

inference
10

painted

Rather, it

to

a

The

exonerate

house

and

(See People v. Alexander

can

be

Because the

drawn

that

1

[Petitioner] supplied the invoice to his attorney, who

2

passed it on to Prosecutor Bowers.

3

admitted

4

[Petitioner] knew who created the document, when it was

5

created, his intent, and whether it reflected services

6

rendered.

7

possession of the invoice, which the jury was free to

8

believe

9

bolstered by a letter [Petitioner] sent to the court,

10

indicating that “a bad check [] was issued to me for my

11

labor,” which goes hand in hand with the invoice he

12

supplied.

13

employer vouched that [Petitioner] earned the check with

14

his labor.

15

to show [Petitioner]’s consciousness of guilt.

16

as

much

to

Bowers

or

the

could

trial

No

court.

relate

disbelieve.

Defense counsel

how

Bowers’s

testimony

from

a

Presumably,

she

came

into

recollection

work

was

supervisor

or

There was no error in admitting the invoice

Even if the invoice was improperly admitted, the

17

error was harmless.

18

guilt.

19

be made on a home computer, with none of the security

20

features used by commercial enterprises.

21

proved

22

investigation,

23

around

24

leaving

25

[Petitioner] reappeared two hours later, he was still

26

nervous, but did not seem surprised or shocked that the

27

bank manager refused to cash the check.

28

person would be stunned to learn that a payroll check was

There was abundant evidence of

[Petitioner] presented a check that appeared to

to

be

fraudulent.
[Petitioner]

nervously.
his

He

During

11

the

bank’s

fidgety

was

slipped

identification

The check

and

looking

out

and

without
a

check.

warning,
When

An innocent

1

fraudulent

2

circumstances, rectify the error, and ensure payment.

3

Instead, [Petitioner] turned on his heel, and abandoned

4

his identification, his wallet, and the check at the

5

bank, without explanation.

6

convicted even without the invoice.

and

would

be

eager

to

explain

the

[Petitioner] would have been

7 (Lodgment 4 at 5-6.)
8

B.

9

A federal habeas court does not review “questions of state

Due Process2

10 evidence law.”
11 1999).

Spivey v. Rocha, 194 F.3d 971, 977 (9th Cir.

Only if a petitioner asserts that the admission of

12 evidence by the state court violated his due process rights is
13 the claim cognizable on federal habeas review, and then only if
14 the evidence rendered the trial “fundamentally unfair.”
15 v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009).

Holley

The

16 admission of inculpatory evidence violated due process only if no
17 permissible inferences existed for the jury to draw from the
18
19

2

Even though the court of appeal did not explicitly refer

20 to the Due Process Clause in denying Petitioner’s evidentiary
claim, its analysis tracked the standard applicable under federal
21 law by concluding that the invoice was admissible to show his

22 consciousness of guilt. See Ortiz-Sandoval v. Gomez, 81 F.3d 891,
23
24
25
26
27
28

897 (9th Cir. 1996) (holding that admission of prior-bad-acts
evidence to show consciousness of guilt did not violate Due Process
Clause). The court of appeal therefore necessarily adjudicated
that federal claim. See Ramirez v. McDonald, No. CV 11-02068-JST
(SS), 2011 WL 7111902, at *7 (C.D. Cal. Dec. 22, 2011) (concluding
that state court necessarily adjudicated federal nature of
instructional-error claim even though court cited only state law
because “applicable state-law standard imposed the same limit on
trial court discretion as the applicable legal standard under the
federal Constitution”), accepted by 2012 WL 263032 (C.D. Cal. Jan.
26, 2012).
12

1 evidence, which was so inflammatory that it necessarily prevented
2 a fair trial.

Windham v. Merkle, 163 F.3d 1092, 1103 (9th Cir.

3 1998); Hovey v. Ayers, 458 F.3d 892, 923 (9th Cir. 2006).

The

4 Supreme Court has made “very few rulings regarding the admission
5 of evidence as a violation of due process”; specifically, it has
6 never “made a clear ruling that admission of irrelevant or
7 overtly prejudicial evidence constitutes a due process violation
8 sufficient to warrant issuance of the writ.”

Holley, 568 F.3d at

9 1101.
10

The court of appeal’s denial of this subclaim was not

11 objectively unreasonable.

Even though Petitioner did not fully

12 limn the alleged due process violation in the Petition, to the
13 extent he claims that the invoice was irrelevant, prejudicial, or
14 lacked foundation, absent clearly established federal law
15 recognizing that the admission of such evidence violates due
16 process, the court of appeal could not have been unreasonable
17 under AEDPA.

See Wright v. Van Patten, 552 U.S. 120, 125-26, 128

18 S. Ct. 743, 746-47, 169 L. Ed. 2d 583 (2008) (holding that state
19 court could not have unreasonably applied federal law if no clear
20 Supreme Court precedent existed); Holley, 568 F.3d at 1101; Baker
21 v. Evans, No. 2:07-cv-00188 JCW, 2010 WL 4722034, at *25 (E.D.
22 Cal. Nov. 12, 2010) (rejecting evidentiary claim challenging lack
23 of foundation in part because state court denial did not
24 contradict controlling Supreme Court precedent).

In any event,

25 the admission of the invoice did not render Petitioner’s trial
26 fundamentally unfair because it was relevant to show his
27 consciousness of guilt, in that other evidence suggested he had
28 created and then given the fake invoice to his attorney,
13

1 presumably to exonerate himself and corroborate his explanation
2 that he had received the check for his labor.3

Further, the

3 prosecutor laid a foundation for the invoice because Bowers
4 testified that defense counsel had given it to her in the hallway
5 after the preliminary hearing, and other evidence demonstrated
6 that defense counsel had gotten it from Petitioner.

(Lodgment

7 11, 2 Rep.’s Tr. at 904-08, 912.)
8

Finally, even if erroneous, the admission of the invoice did

9 not have a substantial and injurious effect in determining the
10 verdicts.

See Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.

11 Ct. 1710, 1722, 123 L. Ed. 2d 353 (1993); Merolillo v. Yates, 663
12 F.3d 444, 455 (9th Cir. 2011) (applying Brecht to review state
13 court’s harmlessness analysis).

As the court of appeal found,

14 the evidence of Petitioner’s guilt was “abundant.”
15 at 5.)

(Lodgment 4

Petitioner (1) attempted to cash a fake check printed

16 from a home computer (Lodgment 11, 2 Rep.’s Tr. at 673-76, 68417 89, 918-19); (2) appeared “fidgety” and “nervous” at the bank
18 (id. at 690); (3) left abruptly the first time, without the check
19 and his California identification card, when bank personnel
20 decided to verify the check (id. at 679, 691-92; and (4) left the
21 second time without protest, and without his wallet, when he was
22
23

3

Even though the court of appeal merely presumed that

24 Petitioner had given the fake invoice to his attorney (Lodgment 4
at 5 (“A reasonable inference can be drawn that [Petitioner]
25 supplied the invoice to his attorney, who passed it on to
26 Prosecutor Bowers.”)), Petitioner conceded that fact in his state
habeas petition, to which he attached defense counsel’s declaration

27 stating that Petitioner said he prepared the invoice himself and
insisted that she deliver it to the prosecutor to “clear up the

28 whole misunderstanding” (Lodgment 9, Ex. A).
14

1 told that he could not have those items back (id. at 692-93,
2 696).

Accordingly, habeas relief is not warranted on this

3 subclaim.
4

C.

5

The court of appeal apparently did not address Petitioner’s

Confrontation Clause

6 Confrontation Clause subclaim even though he raised it in his
7 opening brief.

(See Lodgment 1 at 19 (“The alleged invoice was .

8 . . . not only inadmissible as a matter of statutory law, but its
9 admission . . . violated [Petitioner]’s right to confrontation of
10 witnesses” (citing Crawford v. Washington, 541 U.S. 36, 124 S.
11 Ct. 1354, 158 L. Ed. 2d 177 (2004))).)

The Court therefore

12 reviews this claim de novo.
13

The Confrontation Clause of the Sixth Amendment affords a

14 criminal defendant the right to cross-examine witnesses against
15 him.

Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S. Ct.

16 1431, 1435, 89 L. Ed. 2d 674 (1986).

In Crawford, the Supreme

17 Court held that the Confrontation Clause bars “admission of
18 testimonial statements of a witness who did not appear at trial
19 unless he was unavailable to testify, and the defendant had had a
20 prior opportunity for cross-examination.”

541 U.S. at 53-54.

21 Conversely, the Confrontation Clause does not bar nontestimonial
22 hearsay statements.
23 admissions.

Id. at 68.

It also does not bar party

United States v. Crowe, 563 F.3d 969, 976 n.12 (9th

24 Cir. 2009) (holding defendant’s incriminating out-of-court
25 statements admissible and noting that they did not “raise hearsay
26 or Confrontation Clause concerns”).
27

Petitioner’s Confrontation Clause subclaim fails.

As

28 Petitioner’s lawyer acknowledged, Petitioner had created and then
15

1 given the fake invoice to her to turn over to the prosecutor to
2 cover up his crime.

(See Lodgment 9, Ex. A.)

Thus, admission of

3 the invoice did not implicate Crawford because it constituted an
4 admission by a party opponent.

See Crowe, 563 F.3d at 976 n.12;

5 United States v. Spencer, 592 F.3d 866, 878-79 (8th Cir. 2010)
6 (holding that tape recordings of defendant’s incriminating
7 statements did not violate Crawford because statements were
8 admissions by party opponent); United States v. Tolliver, 454
9 F.3d 660, 665 (7th Cir. 2006) (same).4

Accordingly, habeas

10 relief is not warranted on this subclaim.
11 II.

Habeas relief is not warranted on Petitioner’s claim that

12

the trial court unconstitutionally denied his motion to

13

reopen testimony

14

Petitioner argues that the trial court unconstitutionally

15 denied his motion to reopen the proceedings at the end of trial
16 to allow him to testify.

(Pet. at 5.)

17

A.

18

The Court has independently verified and accordingly adopts

Background

19 the court of appeal’s factual summary regarding this claim:
20

At the close of the prosecution’s case, the court

21

asked whether [Petitioner] was going to testify. Counsel

22

replied, “He is not going to take the stand, your Honor,”

23

and rested because there were no other witnesses.5

The

24
4

Even assuming the invoice was legitimate, its admission
25 did not violate the Confrontation Clause because it was a
26 nontestimonial business record. See Crawford, 541 U.S. at 54-56
(noting that business records “by their nature” not testimonial).

27
5

Specifically, the following colloquy occurred outside the

28 presence of the jury after the prosecution rested:
16

1

court

reminded

the

jury

that

the

defense

has

no

2
3
4
5
6

The Court:

Ms. Corona [defense counsel], how many
witnesses are you going to call?

Ms. Corona:

None.

The Court:

Okay. Mr. Barnes is or is not going to
take the stand?

Ms. Corona:

He is not going to take the stand, your
honor.

The Court:

Okay.
So you are going to essentially
rest; is that right?

Ms. Corona:

That’s correct.

The Court:

Okay. I think maybe then the best thing
to do would be to take a break for the
rest of the afternoon.

7
8
9
10
11
12
13
14

15 (Lodgment 11, 2 Rep.’s Tr. at 957.)
16
17
18

The court then briefly recessed and proceeded to question
defense counsel in open court:
The Court:

19
20
21

Ladies and gentlemen, the People have
concluded their case. So you have heard
all of the evidence that you are going to
hear from them. So we are going to – let
me ask Ms. Corona.
Ms. Corona, do you have any witnesses to
call?

22
23

Ms. Corona:

No, your honor, the defense rests.

24

The Court:

All right.
Ladies and gentlemen, the
defendant rests as well.
They are not
going to present any evidence.

25
26

(Id. at 958.)

The court subsequently informed the jury that when

27 they reconvened the next day, the case would be finished and they
would receive jury instructions, followed by closing arguments.

28 (Id. at 959.)

17

1

obligation to present witnesses because the burden of

2

proof is on the prosecution. The court excused the jury,

3

and spent the afternoon finalizing jury instructions.6

4

The following day, as the court was preparing to

5

read the jury instructions, defense counsel received a

6

note from [Petitioner], indicating that “he has changed

7

his

8

something that he needs to do, and he wants to do.”

9

court denied [Petitioner]’s request to reopen, stating,

10

“Both sides have rested. The People would be prejudiced.

11

They would not have the opportunity or it would be

12

difficult for them to call any rebuttal witnesses or find

13

any rebuttal witnesses at this point in time.”

mind

about

testifying

and

he

feels

that

it’s
The

14 (Lodgment 4 at 6.)
15

The court of appeal rejected Petitioner’s claim:

16

The

parties

agree

that

the

trial

court

has

17

substantial discretion whether to reopen a case for the

18

introduction of additional evidence.

19

consider four factors: (1) the stage of the proceedings;

20

(2) the defendant’s diligence; (3) the risk that the jury

21

would give the new evidence “undue emphasis”; and (4) the

22

significance of the new evidence.

23

(2003) 30 Cal. 4th 1084, 1110.)

24

to reopen — after both sides rested and the jury was

On review, we

(People v. Jones

[Petitioner]’s request

25
26
27
28

6

After excusing the jury, the court asked Petitioner
whether he wished to be present for the rest of the afternoon while
the court reviewed jury instructions with counsel, and he said no.
(Lodgment 11, 2 Rep.’s Tr. at 964-65.)
Accordingly, the court
excused him. (Id. at 965.)
18

1

about to be instructed — would have prolonged the trial,

2

and

3

witnesses.

(People v. Earley (2004) 122 Cal. App. 4th

4

542, 546.)

[Petitioner] made no offer of proof in the

5

trial court about the significance of his new evidence.

6

Indeed, he concedes in his brief that “the significance

7

of [Petitioner]’s testimony to the case if permitted to

8

reopen was unknown.”

9

court did not abuse its discretion in refusing to reopen

10

because the request “came too late in the proceedings and

11

did

12

significant, evidence.”

required

not

the

propose

prosecution

to

locate

rebuttal

Under the circumstances, the trial

to

offer

any

new,

particularly

(Earley, at p. 546.)

13 (Id. at 6-7 (some alterations, citations, and internal quotation
14 marks omitted).)
15

B.

16

A criminal defendant has a right to testify on his own

17 behalf.

Applicable Law

Rock v. Arkansas, 483 U.S. 44, 51-52, 107 S. Ct. 2704,

18 2708-09, 97 L. Ed. 2d 37 (1987); see also Jones v. Barnes, 463
19 U.S. 745, 751, 103 S. Ct. 3308, 3312, 77 L. Ed. 2d 987 (1983)
20 (holding that counsel cannot waive defendant’s right to testify).
21 The defendant may, however, waive that right explicitly or
22 implicitly.

Cf. United States v. Pino-Noriega, 189 F.3d 1089,

23 1094 (9th Cir. 1999) (holding that waiver of right to testify
24 need not be explicit and instead may be inferred).

An implicit

25 waiver “may be inferred from the defendant’s conduct and is
26 presumed from the defendant’s failure to testify or notify the
27 court of his desire to do so.”

United States v. Joelson, 7 F.3d

28 174, 177 (9th Cir. 1993) (reasoning that defendant who wants to
19

1 reject counsel’s advice and testify may do so by insisting on
2 testifying, speaking to court, or discharging counsel); see
3 Pino-Noriega, 189 F.3d at 1095 (holding defendant waived right to
4 testify by remaining “silent in the face of his attorney’s
5 decision not to call him as a witness”).

“The trial court has no

6 duty to advise the defendant of his right to testify, nor is the
7 court required to ensure that an on-the-record waiver has
8 occurred.”

Joelson, 7 F.3d at 177 (internal quotation marks

9 omitted).
10

Furthermore, while the right to testify in one’s own defense

11 is fundamental, that right “may, in appropriate cases, bow to
12 accommodate other legitimate interests in the criminal trial
13 process,” as long as such restrictions on the right to testify
14 are not “arbitrary or disproportionate to the purposes they are
15 designed to serve.”

Rock, 483 U.S. at 55-56; see, e.g.,

16 Pino-Noriega, 189 F.3d at 1096 (defendant’s request to reopen
17 evidence and testify after jury had reached verdict but before
18 verdict was read was untimely); Neuman v. Rivers, 125 F.3d 315,
19 318-19 (6th Cir. 1997) (defendant not deprived of right to
20 testify but rather waived it by waiting to make request to reopen
21 evidence and testify on his own behalf until just before jury
22 instructions); United States v. Jones, 880 F.2d 55, 59 (8th Cir.
23 1989) (“The rule generally limiting testimony to the
24 evidence-taking stage of trial does not unconstitutionally
25 infringe upon a defendant’s right to testify.”).
26

C.

27

The court of appeal’s finding that Petitioner’s motion to

Analysis

28 reopen was untimely was not objectively unreasonable.
20

Petitioner

1 changed his mind about testifying and made his request after both
2 sides had rested, the court had finalized jury instructions, and
3 the court had informed the jury that all that was left to do in
4 the trial were jury instructions and closing argument and that
5 the proceedings would be “finish[ed]” the next day.

(Lodgment

6 11, 2 Rep.’s Tr. at 957-59; 3 Rep.’s Tr. at 1202-05.)

Before

7 notifying the jury that the taking of evidence in the case had
8 concluded, the trial court twice inquired through counsel whether
9 Petitioner wished to testify, and he remained silent as counsel
10 responded in the negative, even though he could have advised the
11 court of his desire to testify or that he disagreed with
12 counsel’s representations.
13 58.)

(Lodgment 11, 2 Rep.’s Tr. at 957-

Indeed, Petitioner subsequently informed the court that he

14 wished to testify precisely because he had changed his mind.
15 (Lodgment 11, 3 Rep.’s Tr. at 1202-05.)

Therefore, it was not

16 “arbitrary or disproportionate” for the trial court to deny his
17 motion to reopen raised at such a late stage of the proceedings.
18 See Rock, 483 U.S. at 55-56; Sillas v. Virga, NO. CV 08-00459 JHN
19 (SS), 2010 U.S. Dist. LEXIS 118075, at *65 (C.D. Cal. Sept. 13)
20 (finding state court denial of petitioner’s motion to reopen
21 after close of evidence not objectively unreasonable because
22 requiring assertion of that right before close of evidence
23 “promotes order and fairness in trials and is neither arbitrary
24 or disproportionate to that purpose” (internal quotation marks
25 omitted)), accepted by 2010 U.S. Dist. LEXIS 117701 (C.D. Cal.
26 Nov. 4, 2010).

Accordingly, this claim does not warrant habeas

27 relief.
28
21

1
2 III. Habeas relief is not warranted on Petitioner’s
3

prosecutorial-misconduct claim

4

Petitioner argues that the prosecutor violated Griffin by

5 improperly commenting in closing argument on Petitioner’s
6 decision not to testify.

(Pet. at 5-6.)

7

A.

8

The Court has independently verified and accordingly adopts

Background

9 the court of appeal’s factual summary regarding Petitioner’s
10 prosecutorial-misconduct claim:
11

During closing argument, the prosecutor discussed

12

[Petitioner]’s creation of a false invoice following his

13

arrest, referring to it as “this lie.”

The prosecutor

14

reasoned

[Petitioner]’s

15

postarrest attempt to wriggle out of criminal charges by

16

pretending that he legitimately earned the check with his

17

labors. . . .7

that

the

false

invoice

was

18
19
20
21
22

7

In particular, the prosecutor argued:

. . . . [A]fter he’s arrested, he makes up this lie with
the invoice, right? He makes up a lie.
Only guilty people do this.
the check was fake do this.

Only people who knew

23
24
25
26
27
28

Because if the truth is something that will help you
out, the truth is something that you will show that you
didn’t know what was going on, you would tell the truth.
There’s only one person who has to be afraid of the
truth, and that’s someone who is guilty. Innocent people
don’t have to do this. Because they can tell the truth.
He can’t. He can’t tell the truth because if he told the
truth, he would get — he knows he would get immediately
22

1 (Lodgment 4 at 7-8 (footnote and some alterations omitted).)
2

The court then rejected this claim on the merits after

3 finding that Petitioner had waived it:
4

.

.

.

.

The

prosecutor

did

not

address

5

[Petitioner]’s failure to testify.

6

closing argument highlighted [Petitioner]’s failure to

7

“tell

8

prosecution, i.e., that he knew the check was fraudulent.

9

Telling the police the truth about the check would get

the

truth”

before

trial

In context, the

to

the

police

and

10

him “immediately convicted.”

11

fearing the truth — concocted a flimsy story about the

12

provenance of the check.

13

he

14

evidence.”

would

not

have

made

Instead, [Petitioner] —

If [Petitioner] were innocent,
up

“the

lie

and

the

fake

15

The prosecutor alluded to the phony exculpatory

16

evidence because it showed [Petitioner]’s consciousness

17

of guilt.

18

926, 1001 [prosecutor may comment on evidence showing the

19

defendant’s consciousness of guilt].)

(See People v. Cunningham (2001) 25 Cal. 4th

The argument was

20
21
22
23
24
25
26
27

convicted. And he created this fake evidence, you know.
It’s the same thing, basically, the lie and fake
evidence.
. . . .
And I want to sort of contrast that for a second
with what an innocent person would do. Because think
about it. Think about if someone who really thought this
check was good, had really painted some bedrooms and had
been given this check for payment, and went to [the bank]
to cash it, what would they do? . . .

28 (Lodgment 11, 2 Rep.’s Tr. at 1247-48.)
23

1

a “comment on the state of the evidence.”

(People v.

2

Cornwell, supra, 37 Cal. 4th at p. 90[.])

It does not

3

refer, in any way, to [Petitioner]’s silence at trial,

4

and the jury could not reasonably have construed it as a

5

reference to [Petitioner]’s failure to testify.

6 (Id. at 8 (some internal quotation marks omitted).)
7

B.

8

Prosecutorial misconduct warrants habeas relief only if it

Applicable Law

9 “so infected the trial with unfairness as to make the resulting
10 conviction a denial of due process.”

Darden v. Wainwright, 477

11 U.S. 168, 181, 106 S. Ct. 2464, 2471, 91 L. Ed. 2d 144 (1986);
12 Renderos v. Ryan, 469 F.3d 788, 799 (9th Cir. 2006) (same).

The

13 Ninth Circuit has interpreted Darden as requiring a two-step
14 inquiry: whether the prosecutor’s actions were improper and, if
15 so, whether they “infected” the trial and rendered it
16 “fundamentally unfair.”
17 Cir. 2000).

Drayden v. White, 232 F.3d 704, 713 (9th

“[T]he touchstone of due process analysis in cases

18 of alleged prosecutorial misconduct is the fairness of the trial,
19 not the culpability of the prosecutor.”

Smith v. Phillips, 455

20 U.S. 209, 219, 102 S. Ct. 940, 947, 71 L. Ed. 2d 78 (1982).
21 Relief is limited to cases in which the petitioner can establish
22 that the prosecutorial misconduct resulted in actual prejudice
23 under Brecht, 507 U.S. at 637-38, requiring the alleged error to
24 have had a substantial and injurious effect or influence on the
25 verdict.
26

Shaw v. Terhune, 380 F.3d 473, 478 (9th Cir. 2004).

The Fifth Amendment precludes the prosecutor from commenting

27 on a defendant’s failure to testify.

Griffin, 380 U.S. at 615.

28 A comment is impermissible “if it is manifestly intended to call
24

1 attention to the defendant’s failure to testify, or is of such a
2 character that the jury would naturally and necessarily take it
3 to be a comment on the failure to testify.”

Rhoades v. Henry,

4 598 F.3d 495, 510 (9th Cir. 2010), cert. denied, 132 S. Ct. 401
5 (2011).
6

C.

7

As a preliminary matter, Respondent asserts that

Analysis

8 Petitioner’s prosecutorial-misconduct claim is procedurally
9 defaulted because the court of appeal rejected it in part based
10 on Petitioner’s failure to comply with California’s
11 contemporaneous-objection rule.

(Answer at 1, 22-25.)

12 Petitioner has failed to dispute Respondent’s contentions because
13 he did not file a reply to the Answer.

Because it is easier to

14 adjudicate this claim on the merits, however, the Court has done
15 so in the interest of judicial economy.

See Lambrix v.

16 Singletary, 520 U.S. 518, 524-25, 117 S. Ct. 1517, 1523, 137 L.
17 Ed. 2d 771 (1997); Franklin v. Johnson, 290 F.3d 1223, 1232 (9th
18 Cir. 2002) (noting that federal courts “are empowered to, and in
19 some cases should, reach the merits of habeas petitions if they
20 are, on their face and without regard to any facts that could be
21 developed below, clearly not meritorious despite an asserted
22 procedural bar”).

The Court applies the deferential AEDPA

23 standard in reviewing this claim because the court of appeal
24 reached its merits in the alternative.

(Lodgment 4 at 8); see

25 James v. Ryan, 679 F.3d 780, 802-03 (9th Cir. 2012) (holding that
26 when state court primarily rejects habeas claim on procedural
27 ground but alternatively reaches and resolves merits of claim,
28 denial of it is entitled to AEDPA deference).
25

1

The court of appeal was not objectively unreasonable in

2 denying this claim.

Taken in context, instead of expressly

3 targeting Petitioner’s failure to testify, the prosecutor’s
4 remarks focused on Petitioner’s pretrial attempt to falsify
5 evidence, in which he created and then gave a fake invoice to his
6 attorney; the remarks therefore were permissible to show
7 Petitioner’s consciousness of guilt and were properly grounded in
8 the evidence.

Likewise, the prosecutor’s statement that

9 Petitioner would have been “immediately convicted” if he had
10 “told the truth” referred to his decision to lie before trial,
11 not his failure to testify during it.

Therefore, because the

12 statements were not of “such a character that the jury would
13 naturally and necessarily take [them] to be [comments] on the
14 failure” of Petitioner to testify, there was no Griffin error.
15 See Rhoades, 598 F.3d at 510; Winn v. Lamarque, No. 2:03-cv-2347
16 JAM KJN P, 2010 WL 2303304, at *19-20 (E.D. Cal. June 7, 2010)
17 (denying Griffin challenge because prosecutor’s statement
18 referred to petitioner’s lie to police, which prosecutor claimed
19 had not been subjected to cross-examination, and not his failure
20 to testify at trial).
21 IV.

Habeas relief is not warranted on Petitioner’s ineffective-

22

assistance-of-counsel claim

23

Petitioner argues that his trial counsel was

24 constitutionally ineffective for failing to object to the alleged
25 Griffin error or authenticate the fake invoice given to her by
26 Petitioner, which was subsequently used at trial to inculpate
27
28
26

1 him.8
2

(Pet. at 6.)
Under Strickland v. Washington, 466 U.S. 668, 687, 104 S.

3 Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984), a petitioner claiming
4 ineffective assistance of counsel must show that counsel’s
5 performance was deficient and that the deficient performance
6 prejudiced his defense.

“Deficient performance” means

7 unreasonable representation falling below professional norms
8 prevailing at the time of trial.

Id. at 688-89.

To show

9 deficient performance, the petitioner must overcome a “strong
10 presumption” that his lawyer “rendered adequate assistance and
11 made all significant decisions in the exercise of reasonable
12 professional judgment.”

Id. at 690.

Further, the petitioner

13 “must identify the acts or omissions of counsel that are alleged
14 not to have been the result of reasonable professional judgment.”
15 Id.

The initial court considering the claim must then “determine

16 whether, in light of all the circumstances, the identified acts
17 or omissions were outside the wide range of professionally
18 competent assistance.”
19

Id.

The Supreme Court has recognized that “it is all too easy

20 for a court, examining counsel’s defense after it has proved
21 unsuccessful, to conclude that a particular act or omission of
22 counsel was unreasonable.”

Id. at 689.

Accordingly, to overturn

23 the strong presumption of adequate assistance, the petitioner
24 must demonstrate that the challenged action could not reasonably
25 be considered sound trial strategy under the circumstances of the
26
27
8

Petitioner adopts his ineffective-assistance-of-counsel
(Pet. at 6.)

28 arguments from his state-court briefs.
27

1 case.
2

Id.
To meet his burden of showing the distinctive kind of

3 “prejudice” required by Strickland, the petitioner must
4 affirmatively
5

show that there is a reasonable probability that, but for

6

counsel’s

7

proceeding would have been different.

8

probability is a probability sufficient to undermine

9

confidence in the outcome.

unprofessional

errors,

the

result

of

the

A reasonable

10 Id. at 694; see also Richter, 131 S. Ct. at 791 (“In assessing
11 prejudice under Strickland, the question is not whether a court
12 can be certain counsel’s performance had no effect on the outcome
13 or whether it is possible a reasonable doubt might have been
14 established if counsel acted differently.”).

A court deciding an

15 ineffective-assistance-of-counsel claim need not address both
16 components of the inquiry if the petitioner makes an insufficient
17 showing on one.
18

Strickland, 466 U.S. at 697.

In Richter, the Supreme Court reiterated that AEDPA requires

19 an additional level of deference to a state-court decision
20 rejecting an ineffective-assistance-of-counsel claim:
21

The

22

application of the Strickland standard was unreasonable.

23

This is different from asking whether defense counsel’s

24

performance fell below Strickland’s standard.

pivotal

25 131 S. Ct. at 785.

question

is

whether

the

state

court’s

The Supreme Court further explained,

26

Establishing

27

Strickland was unreasonable under § 2254(d) is all the

28

that

a

state

28

court’s

application

of

1

more difficult.

2

§ 2254(d) are both “highly deferential,” . . . and when

3

the two apply in tandem, review is “doubly” so.

4

Strickland standard is a general one, so the range of

5

reasonable applications is substantial.

6

courts

7

unreasonableness under Strickland with unreasonableness

8

under § 2254(d). When § 2254(d) applies, the question is

9

not whether counsel’s actions were reasonable.

must

The standards created by Strickland and

guard

against

the

The

Federal habeas

danger

of

equating

The

10

question is whether there is any reasonable argument that

11

counsel satisfied Strickland’s deferential standard.

12 Id. at 788 (citations omitted).
13

A.

14

The court of appeal rejected this subclaim on direct appeal:

15

[Petitioner] asserts that he received ineffective

16

assistance of counsel, who failed to preserve claims by

17

asserting timely objections in the trial court.

18

true

19

prosecutor’s argument.

20

Cal. 4th 406, 420 [counsel’s failure to preserve a claim

21

by objecting in the trial court may give rise to a claim

22

for ineffective assistance of counsel].)

23

explanation for this may be tactical: counsel may have

24

decided not to object because it would highlight the

25

issue.

26

In any event, the challenged argument did not refer to

27

[Petitioner]’s decision not to testify at trial and did

28

not constitute prosecutorial misconduct, as discussed in

Griffin Error

that

defense

counsel

failed

to

object

It is
to

the

(See People v. Turner (2004) 34

However, the

(People v. Stewart (2004) 33 Cal. 4th 425, 509.)

29

1

section 3 of this opinion. . . .

2 (Lodgment 4 at 8.)
3

The court of appeal’s denial of this subclaim was not

4 objectively unreasonable because as discussed in Section III, the
5 prosecutor did not violate Griffin in his closing argument, and
6 defense counsel therefore had no reason to object.

See Juan H.

7 v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005) (finding counsel
8 not deficient for failing to raise meritless objection).
9 Further, as the court of appeal noted, counsel could have
10 intentionally chosen not to object to avoid highlighting an
11 incriminating fact, which the invoice certainly was.

See Werts

12 v. Vaughn, 228 F.3d 178, 204-05 (3d Cir. 2000) (holding state
13 court’s denial of ineffective-assistance-of-counsel claim not
14 unreasonable because counsel’s failure to object to prosecutor’s
15 opening and closing remarks was based on decision not to
16 “highlight” or “draw attention” to certain issues).

Counsel’s

17 informed tactical decision in this regard would be “virtually
18 unchallengeable.”

See Strickland, 466 U.S. at 690.

Accordingly,

19 Petitioner is not entitled to relief on this subclaim.
20

B.

21

The court of appeal rejected this subclaim on habeas review,

Failure to Authenticate

22 finding that “Petitioner has failed to meet his burden of showing
23 that but for counsel’s alleged errors, the outcome of his trial
24 would have been different.”

(Lodgment 8.)

The court of appeal’s

25 denial of this subclaim was not objectively unreasonable.
26 Petitioner has failed to show prejudice because as explained in
27 Section I, even without admission of the invoice, abundant
28 evidence demonstrated his guilt.
30

Accordingly, this subclaim does

1 not warrant habeas relief.
2
3

ORDER
IT THEREFORE IS ORDERED that Judgment be entered denying the

4 Petition and dismissing this action with prejudice.
5
6 DATED: September 10, 2012
7

JEAN ROSENBLUTH
U.S. MAGISTRATE JUDGE

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
31