Terrance Lamont Parson v. Kelly Santoro

Filing 13

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE by Judge Cormac J. Carney for Report and Recommendation (Issued) 12 . The Court accepts and adopts the Magistrate Judge's Report and Recommendation. IT IS ORDERED that Judgment be entered denying and dismissing the Petition with prejudice. (Attachments: # 1 R&R) (dml)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 TERRANCE LAMONT PARSON, ) NO. ED CV 17-136-CJC(E) ) Petitioner, ) ) v. ) REPORT AND RECOMMENDATION OF ) KELLY SANTORO, Warden, ) UNITED STATES MAGISTRATE JUDGE ) Respondent. ) ______________________________) 16 17 18 This Report and Recommendation is submitted to the Honorable 19 Cormac J. Carney, United States District Judge, pursuant to 28 U.S.C. 20 section 636 and General Order 05-07 of the United States District 21 Court for the Central District of California. 22 23 PROCEEDINGS 24 25 Petitioner filed a “Petition for Writ of Habeas Corpus By a 26 Person in State Custody” on January 26, 2017. 27 Answer on March 13, 2017. 28 allotted time. Respondent filed an Petitioner did not file a Reply within the 1 BACKGROUND 2 3 An Information charged Petitioner with assault with a deadly 4 weapon (Clerk’s Transcript [“C.T.”] 20-23).1 5 alleged that Petitioner had suffered 1992 convictions for robbery and 6 attempted murder, which qualified as “strikes” within the meaning of 7 California’s Three Strikes Law, California Penal Code sections 667(b) 8 - (i) and 1170.12(a) - (d) (id.).2 9 Petitioner had suffered a prior conviction for which he had served a The Information further The Information also alleged that 10 prison term within the meaning of California Penal Code section 11 667.5(b) (id.). 12 13 The jury found Petitioner guilty of assault with a deadly weapon 14 (Reporter’s Transcript [“R.T.”] 496-1 - 496-3; C.T. 127-28, 133). 15 a bifurcated proceeding on the prior conviction allegations, the 16 prosecution introduced a “prior packet” pursuant to California Penal 17 Code section 969b (R.T. 510-59). 18 /// 19 /// The court found that Petitioner was 20 21 22 1 The prosecution later filed a First Amended Information to correct a typographical error (Reporter’s Transcript 564; C.T. 136-39). 23 2 24 25 26 27 28 In The Three Strikes Law consists of two nearly identical statutory schemes. The earlier provision, enacted by the Legislature, was passed as an urgency measure, and is codified as California Penal Code §§ 667(b) - (I) (eff. March 7, 1994). The later provision, an initiative statute, is embodied in California Penal Code § 1170.12 (eff. Nov. 9, 1994). See generally People v. Superior Court (Romero), 13 Cal. 4th 497, 504-05, 53 Cal. Rptr. 2d 789, 917 P.2d 628 (1996). The State charged Petitioner under both versions (C.T. 20-23). 2 1 the person identified in the “prior packet” (R.T. 565; C.T. 155).3 2 Following a jury trial on the prior conviction allegations, the jury 3 found the allegations to be true (R.T. 620-26; C.T. 152-53, 156). 4 5 The trial court denied Petitioner’s motion to strike the prior 6 conviction allegations made pursuant to People v. Superior Court 7 (Romero), 13 Cal. 4th 497, 53 Cal. Rptr. 2d 789, 917 P.2d 628 (1996) 8 (R.T. 902; C.T. 418). 9 years to life (R.T. 903-04; C.T. 419-21). Petitioner received a sentence of twenty-five 10 11 The California Court of Appeal affirmed in a reasoned decision 12 (Respondent’s Lodgment 1; see People v. Parson, 2015 WL 6946013 (Cal. 13 App. Nov. 10, 2015)). 14 Petitioner’s petition for review summarily (Respondent’s Lodgment 2). The California Supreme Court denied 15 16 SUMMARY OF TRIAL EVIDENCE 17 18 The following summary is taken from the opinion of the California 19 Court of Appeal in People v. Parson, 2015 WL 6946013 (Cal. App. 20 Nov. 10, 2015). 21 Cir. 2012), cert. denied, 133 S. Ct. 2766 (2013); Slovik v. Yates, 556 22 F.3d 747, 749 n.1 (9th Cir. 2009). 23 /// See Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th 24 3 25 26 27 28 In California, a defendant has a limited statutory right to a jury trial on prior conviction allegations. See Cal. Penal Code § 1025(b); People v. Epps, 25 Cal. 4th 19, 22-25, 104 Cal. Rptr. 2d 572, 18 P.3d 2 (2001). However, this statutory jury trial right does not extend to the issue of whether the defendant is the person who suffered the prior conviction. See Cal. Penal Code § 1025(c). 3 1 On July 17, 2011, Parson, who was in his house, and his 2 wife, Tracey Jones-Parson, who was standing outside on the 3 sidewalk, had a lengthy verbal altercation. 4 telephoned the police. 5 and his wife stopped arguing. 6 returned a short time later with her 19-year-old son, Karl 7 Palmer. 8 challenging him to “come out of the house.” 9 repeatedly said, “You don’t want that, if, if I come down Neighbors Police officers left after Parson Jones-Parson also left but Palmer began to scream and swear at Parson, Parson 10 there there’s gonna be problems, you don’t want me to come 11 down.” 12 13 Palmer and Parson continued to swear at each other 14 until Parson came out of his house carrying a kitchen knife 15 with a four-inch wooden handle and four-inch blade. 16 shouted “you asked for it” and said that he was going to 17 kill Palmer. Palmer ran into a neighbor’s house and shut the 18 door. Neighbors contacted the police. Parson 19 20 When police officers Shannon Vanderkallen and David 21 Campa arrived, Parson dropped the knife and walked toward 22 them. 23 the ground. 24 arrested him for assault with a deadly weapon. He refused to comply with their commands to get on The officers wrestled Parson to the ground and 25 26 At trial, a neighbor, Brandy Jackson Villarreal, 27 testified that Parson was holding the knife at his side when 28 he approached Palmer. Villarreal said that she stood 4 1 between Parson and Palmer, and pushed Palmer toward her 2 house. 3 Parson was holding the knife at his side when he approached 4 Palmer and came within 20 feet of him. 5 another neighbor, testified that she was watching the 6 incident from an upstairs window. 7 Palmer came out of his house with a knife, telling the 8 dispatcher that Palmer was “waving the knife around right 9 now” and “threatening a teenage kid.” Marquez said that 10 Villarreal’s cousin, Aubrey Beck, testified that Nancy Marquez, She telephoned 911 when Parson came within 10 feet of Palmer. 11 12 Officer Vanderkallen testified that he interviewed the 13 eyewitnesses at the scene. Beck told him that Parson had 14 been chasing Palmer with a knife, saying that he was going 15 to kill Palmer. 16 was able to get within three to five feet of him. 17 Villarreal told Vanderkallen that Parson had come very close 18 to Palmer and appeared to be trying to stab him. Parson was swinging the knife at Palmer and 19 20 (Respondent’s Lodgment 1, pp. 3-5; see People v. Parson, 2015 WL 21 6946013, at *2). 22 23 PETITIONER’S CONTENTIONS 24 25 Petitioner contends: 26 27 28 1. The trial court erred by failing to grant Petitioner’s motion for a mistrial and a new trial on grounds of prosecutorial misconduct 5 1 (Ground One); 2 3 2. The trial court erred by failing to strike Petitioner’s prior 4 attempted murder and robbery convictions, which assertedly were 5 obtained in violation of Petitioner’s rights under Boykin v. Alabama 6 (“Boykin”)4 and In re Tahl (“Tahl”)5 (Ground Two); and; 7 8 9 10 3. The sentencing court erred by failing to strike one of Petitioner’s prior convictions pursuant to People v. Superior Court (Romero) (Ground Three). 11 12 STANDARD OF REVIEW 13 14 Under the “Antiterrorism and Effective Death Penalty Act of 1996" 15 (“AEDPA”), a federal court may not grant an application for writ of 16 habeas corpus on behalf of a person in state custody with respect to 17 any claim that was adjudicated on the merits in state court 18 proceedings unless the adjudication of the claim: 19 decision that was contrary to, or involved an unreasonable application 20 of, clearly established Federal law, as determined by the Supreme 21 Court of the United States”; or (2) “resulted in a decision that was 22 based on an unreasonable determination of the facts in light of the 23 evidence presented in the State court proceeding.” (1) “resulted in a 28 U.S.C. § 24 25 4 395 U.S. 238 (1969). 26 5 27 28 1 Cal. 3d 122, 81 Cal. Rptr. 577, 460 P.2d 449 (1969), cert. denied, 398 U.S. 911 (1970), overruled in part, People v. Howard, 1 Cal. 4th 1132, 5 Cal. Rptr. 2d 268, 824 P.2d 1315 (1992), cert. denied, 506 U.S. 942 (1992). 6 1 2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. 2 Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 3 (2000). 4 5 “Clearly established Federal law” refers to the governing legal 6 principle or principles set forth by the Supreme Court at the time the 7 state court renders its decision on the merits. 8 U.S. 34, 44 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). 9 state court’s decision is “contrary to” clearly established Federal Greene v. Fisher, 565 A 10 law if: (1) it applies a rule that contradicts governing Supreme 11 Court law; or (2) it “confronts a set of facts . . . materially 12 indistinguishable” from a decision of the Supreme Court but reaches a 13 different result. 14 omitted); Williams v. Taylor, 529 U.S. at 405-06. See Early v. Packer, 537 U.S. at 8 (citation 15 16 Under the “unreasonable application” prong of section 2254(d)(1), 17 a federal court may grant habeas relief “based on the application of a 18 governing legal principle to a set of facts different from those of 19 the case in which the principle was announced.” 20 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 21 U.S. at 24-26 (state court decision “involves an unreasonable 22 application” of clearly established federal law if it identifies the 23 correct governing Supreme Court law but unreasonably applies the law 24 to the facts). Lockyer v. Andrade, 25 26 “In order for a federal court to find a state court’s application 27 of [Supreme Court] precedent ‘unreasonable,’ the state court’s 28 decision must have been more than incorrect or erroneous.” 7 Wiggins v. 1 Smith, 539 U.S. 510, 520 (2003) (citation omitted). “The state 2 court’s application must have been ‘objectively unreasonable.’” 3 at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 4 U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th 5 Cir. 2004), cert. dism’d, 545 U.S. 1165 (2005). 6 habeas court must determine what arguments or theories supported, 7 . . . or could have supported, the state court’s decision; and then it 8 must ask whether it is possible fairminded jurists could disagree that 9 those arguments or theories are inconsistent with the holding in a Id. “Under § 2254(d), a 10 prior decision of this Court.” Harrington v. Richter, 562 U.S. 86, 11 101 (2011). 12 2254(d)(1).” 13 Habeas relief may not issue unless “there is no possibility fairminded 14 jurists could disagree that the state court’s decision conflicts with 15 [the United States Supreme Court’s] precedents.” 16 for obtaining habeas corpus from a federal court, a state prisoner 17 must show that the state court’s ruling on the claim being presented 18 in federal court was so lacking in justification that there was an 19 error well understood and comprehended in existing law beyond any 20 possibility for fairminded disagreement.” This is “the only question that matters under § Id. at 102 (citation and internal quotations omitted). Id. “As a condition Id. at 103. 21 22 In applying these standards, the Court looks to the last reasoned 23 state court decision. See Delgadillo v. Woodford, 527 F.3d 919, 925 24 (9th Cir. 2008). 25 state court summarily denies a claim, “[a] habeas court must determine 26 what arguments or theories . . . could have supported the state 27 court’s decision; and then it must ask whether it is possible 28 fairminded jurists could disagree that those arguments or theories are Where no reasoned decision exists, as where the 8 1 inconsistent with the holding in a prior decision of this Court.” 2 Cullen v. Pinholster, 563 U.S. 170, 188 (2011) (citation, quotations 3 and brackets omitted). 4 5 Additionally, federal habeas corpus relief may be granted “only 6 on the ground that [Petitioner] is in custody in violation of the 7 Constitution or laws or treaties of the United States.” 8 2254(a). 9 of whether the petition satisfies section 2254(a) prior to, or in lieu 28 U.S.C. § In conducting habeas review, a court may determine the issue 10 of, applying the standard of review set forth in section 2254(d). 11 Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc). 12 13 DISCUSSION 14 15 16 I. Petitioner’s Claims of Prosecutorial Misconduct Do Not Merit Federal Habeas Relief. 17 18 A. Background 19 20 21 The Court of Appeal described the factual background for Petitioner’s claims of prosecutorial misconduct: 22 23 1. Testimony in violation of a court order 24 25 [Petitioner] filed a pretrial motion to exclude 26 evidence concerning the circumstances of his arrest. 27 argued that the police were not percipient witnesses to the 28 alleged assault and that any testimony about his behavior 9 He 1 after the police arrived was more prejudicial than 2 probative. ([California] Evid. Code, § 352.) 3 specifically sought to exclude statements in Vanderkallen’s 4 report that Parson had been “very amped up and refused to 5 comply with [Vanderkallen’s] commands” and “refused to sit 6 down and clenched his fist while puffing his chest out and 7 [starting] to stiffen up.” 8 Parson was muscular and appeared to be very irate, and that 9 he determined that it was necessary to use physical force to 10 arrest Parson because he [Vanderkallen] believed that Parson 11 was going to attack and assault Officer Campa. He Vanderkallen also reported that 12 13 The prosecutor opposed the motion in limine. She 14 argued that the evidence of Parson’s conduct after police 15 arrived on the scene was relevant to show the defendant’s 16 state of mind, and that Parson’s assault on Palmer and 17 Parson’s actions toward the police constituted one 18 continuous act of aggression. 19 20 The trial court issued a tentative ruling allowing 21 testimony about Parson’s rude and angry demeanor but 22 excluding testimony of his aggressive behavior toward the 23 officer and his lack of cooperation with the police. 24 25 On direct examination, the prosecutor asked 26 Vanderkallen, “Can you describe how [Parson] appeared?” 27 /// 28 /// 10 1 2 Vanderkallen: “He was irate. Kind of breathing heavily, appeared to be intoxicated.” 3 4 Prosecutor: “Okay. And when you are - when you asked 5 him - when you told him to sit down and he did not sit down, 6 did he appear otherwise cooperative, or how did he appear?” 7 8 Vanderkallen: “He was not cooperative at all.” 9 10 Prosecutor: “Okay. How did his body look? What did his 11 body look like? Was there anything specific about what his 12 body was doing that caused you to say that he was not 13 cooperative?” 14 15 Defense counsel: “Objection, your Honor, 402.” 16 17 The trial court sustained the objection, explaining to 18 counsel that the court had ruled that testimony about 19 Parson’s rude, angry and intoxicated mannerisms could be 20 admitted in evidence, but that any testimony about Parson’s 21 aggressive behavior with the police officers was 22 inadmissible. 23 both police officers not to testify that they felt 24 personally threatened by, or had physical contact with, 25 Parson. 26 prosecutor to elicit that Parson was “amped up” but would 27 not allow her to elicit testimony concerning any type of 28 physical contact with the police. The prosecutor said that she had instructed The trial court said that it would allow the 11 1 When trial resumed, the prosecutor asked Vanderkallen 2 to describe Parson’s physical appearance. Vanderkallen 3 replied, “He had his shirt off. 4 irate. 5 ourselves to sit down and get on the ground.” He was very amped up, We were giving him commands after we identified 6 7 8 The prosecutor then asked, “When you use the word ‘amped up,’ what does that mean?” 9 10 11 Vanderkallen: “Clenching his fist, his chest puffed out, kind of ready to fight.” 12 13 The trial court sustained defense counsel’s objection 14 and struck the statement from the record. During later 15 discussions about Vanderkallen’s testimony, the trial court 16 said, “I don’t think . . . the officer understood the 17 [c]ourt’s order.” 18 19 On direct examination, Officer Campa testified that 20 Parson smelled of alcohol and that he appeared to be 21 intoxicated and extremely upset. 22 “[W]as there anything about his body and the way that he 23 presented himself to you that suggested to you that maybe he 24 was angry?” 25 26 Campa: “Yes, ma’m.” 27 28 Prosecutor: “What was that?” 12 The prosecutor asked, 1 Campa: “During our investigation, that’s as we’re 2 dealing with Mr. Parson, I noticed . . . he clenched his 3 fist and started puffing his chest and became stiff.” 4 5 Defense counsel objected. The trial court ordered the 6 response stricken from the record. Defense counsel moved 7 for a mistrial, stating that the jury now had heard improper 8 evidence about Parson’s conduct twice. 9 proposed giving the jury a limiting instruction but defense The trial court 10 counsel objected, saying that an instruction would only call 11 attention to the damaging statement. 12 13 The trial court commented that Campa’s response had 14 clearly violated its order. 15 had drawn a bright line between the officers’ assessment of 16 Parson’s demeanor on their arrival at the scene and any 17 physical contact they subsequently had with him. 18 the trial court added that it did not believe that the 19 prosecutor had intentionally crossed that line. 20 to defense counsel’s argument, the trial court acknowledged 21 that the officer had violated an explicit order, but 22 explained that the court was denying the motion for mistrial 23 for lack of prejudice to the defendant. 24 that even if the jury were to find that Parson clenched his 25 fists and puffed up his chest when he encountered the 26 police, the violation of the ruling, in and of itself, was 27 not prejudicial to the defendant. 28 The trial court stated that it /// 13 However, In response The court found 1 2. Speaking objection about victim’s statement 2 3 During defense counsel’s cross-examination of 4 Vanderkallen, counsel verified that Palmer was 19 years old 5 and then asked, “You know he’s six foot one, correct?” 6 7 At this point, the prosecutor said, “Object. Foundation 8 and also hearsay unless the People are allowed to inquire as 9 to the entire statement of Mr. Palmer.”6 10 11 Defense counsel objected. Outside the presence of the 12 jury, the trial court told the prosecutor, “[There is] an 13 unspoken rule against speaking objections . . . . [¶] [T]he 14 speaking objection in this case is one that, basically, now 15 tells the jury that a statement was made by the witness who 16 apparently, I’m guessing, is not going to be here. 17 may be some Crawford7 issues with it. 18 have, basically, done by the speaking objection is [tell] 19 the jury there’s a lot there and I want to get into it, but So there And . . . what you 20 21 22 23 24 25 6 The victim, Karl Palmer, did not testify at trial. In posttrial proceedings, Palmer testified that he had been attending college in another state and had not been aware of any efforts to locate him. The prosecution introduced records of telephone conversations between Parson and his wife in which they had discussed maintaining Palmer’s absence. Parson apparently assumed that he would not be bound over for trial in Palmer’s absence. 26 7 27 28 (Crawford v. Washington (2004) 541 U.S. 36 [barring admission of out-of-court testimonial statements unless witness is unavailable and defendant had prior opportunity to cross-examine that witness].) 14 1 you guys don’t know about it. 2 intent. I don’t think that was your But that’s the effect speaking objections have.” 3 4 Defense counsel moved for a mistrial. The trial court 5 denied the motion, stating that although the court was “not 6 happy” with the prosecutor, the speaking objection was not 7 prejudicial to the defendant in view of the totality of the 8 evidence. 9 objections made by the attorneys were not evidence and not 10 The trial court instructed the jury that to consider the attorney’s statements during deliberations. 11 12 3. Improper statements during rebuttal argument 13 14 During closing argument, the prosecutor asked the jury 15 to find the defendant guilty of assault with a deadly 16 weapon. She said, “We ask that you hold him accountable; 17 that you protect the victim that wasn’t here to talk to 18 you — ” 19 20 Defense counsel objected. The trial court sustained 21 the objection and ordered the remark stricken. The 22 prosecutor continued, “ — that you do the right thing; that 23 you look after the safety of your community; that you 24 uphold — ” 25 26 Defense counsel objected again and asked the remark to 27 28 be stricken. /// 15 1 Prosecutor: “ — the law.” 2 3 The Court: “Sustained.” 4 5 6 Prosecutor: “ — that you uphold the law; that you convict the defendant. Thank you.” 7 8 9 After the jury retired to deliberate, the court addressed the prosecutor, stating, “[W]hen you tell the jury 10 to ‘protect the community,’ that’s improper argument. I 11 mean, you have to know for future reference, that’s not 12 something you can argue . . . . [Y]ou’re asking the jury to 13 do more than what their job is. 14 the facts are.” Their job is to decide what 15 16 Defense counsel moved for a mistrial. The trial court 17 denied the motion, stating that if the defendant was 18 convicted, counsel could bring a motion for a new trial, and 19 the court would review the transcripts to make sure its 20 ruling was correct. 21 concerned about several issues during the trial and each 22 time took immediate steps to correct any possible confusion 23 on the jury’s part. 24 those steps were sufficient to ensure that the defendant 25 received a fair trial. The trial court said that it had been The trial court was satisfied that 26 27 28 After the jury returned its verdict, Parson filed a motion for a new trial, claiming prosecutorial misconduct 16 1 for eliciting improper evidence, making a speaking 2 objection, and making improper statements during argument. 3 The trial court commented that in some instances, the 4 prosecutor’s conduct had been “shock[ing].” 5 exception of Vanderkallen’s improper response to her 6 question, which the court believed the prosecutor had not 7 expected, the prosecutor had been “remiss.” 8 court stated that the appropriate analysis was whether the 9 cumulative effect of the prosecutor’s conduct was With the However, the 10 prejudicial to the defendant. The trial court had sustained 11 defense counsel’s objections and struck the answers and 12 statements from the record. 13 reasonable doubt that the errors complained of had not 14 contributed to the jury’s verdict, and denied the motion for 15 new trial. The trial court found beyond a 16 17 (Respondent’s Lodgment 1, pp. 7-13; see People v. Parsons, 2015 WL 18 6946014, at *3-5) (original footnotes renumbered). 19 20 Petitioner contends the prosecutor committed misconduct by 21 allegedly: (1) eliciting excluded testimony; (2) making a speaking 22 objection; and (3) improperly exhorting the jury, in closing argument, 23 to protect the victim and the community. 24 these claims on the merits (Respondent’s Lodgment 1, pp. 14-18; see 25 People v. Parson, 2015 WL 6946013, at *6-7). 26 ruled that the prosecutor’s errors were not “so egregious that they 27 deprived [Petitioner] of a fundamentally fair trial under federal 28 constitutional standards” (Respondent’s Lodgment 1, p. 15; see People 17 The Court of Appeal rejected The Court of Appeal 1 v. Parson, 2015 WL 6946013, at *6). The Court of Appeal also ruled 2 that, under state law standards, Petitioner had not shown that the 3 alleged errors prejudiced Petitioner (Respondent’s Lodgment 1, pp. 16- 4 18); see People v. Parsons, 2015 WL 6946013, at *6). 5 6 B. Discussion 7 8 Prosecutorial misconduct merits habeas relief only where the 9 misconduct “‘so infected the trial with unfairness as to make the 10 resulting conviction a denial of due process.’” Darden v. Wainwright, 11 477 U.S. 168, 181 (1986) (“Darden”) (citation and internal quotations 12 omitted); Bonin v. Calderon, 59 F.3d 815, 843 (9th Cir. 1995), cert. 13 denied, 516 U.S. 1051 (1996) (“To constitute a due process violation, 14 the prosecutorial misconduct must be so severe as to result in the 15 denial of [the petitioner’s] right to a fair trial.”). 16 touchstone of due process analysis in cases of alleged prosecutorial 17 misconduct is the fairness of the trial, not the culpability of the 18 prosecutor.” 19 Furthermore, on habeas review, a federal court will not disturb a 20 conviction for prosecutorial misconduct unless the misconduct had a 21 “substantial and injurious effect or influence in determining the 22 jury’s verdict.” 23 (citation and internal quotations omitted) (“Brecht”); Shaw v. 24 Terhune, 380 F.3d 473, 478 (9th Cir. 2004) (Brecht applies to claim of 25 prosecutorial misconduct). “[T]he Smith v. Phillips, 455 U.S. 209, 219 (1982). Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993) 26 27 A 2012 Supreme Court case illustrates the difficulty of 28 succeeding on a claim of prosecutorial misconduct under the AEDPA 18 1 standard of review. See Parker v. Matthews, 567 U.S. 37, 132 S. Ct. 2 2148 (2012) (“Parker”). 3 Circuit had granted habeas relief on a claim that the prosecutor 4 committed misconduct in closing argument by suggesting that the 5 petitioner had colluded with his lawyer and an expert witness to 6 manufacture an “extreme emotional disturbance” defense. 7 AEDPA standard of review, the United States Supreme Court reversed the 8 Sixth Circuit. 9 the prosecutor’s comments had directed the jury’s attention to In Parker, the Court of Appeals for the Sixth Id. at 2155. Applying the The Supreme Court reasoned that, even if 10 inappropriate considerations, the petitioner had not shown that the 11 state court’s rejection of the prosecutorial misconduct claim was “so 12 lacking in justification that there was an error well understood and 13 comprehended in existing law beyond any possibility for fairminded 14 disagreement.” 15 at 786-87) internal quotations omitted). Id. at 2155 (quoting Harrington v. Richter, 131 S. Ct. 16 17 1. Eliciting Allegedly Excluded Evidence 18 19 The prosecutor’s alleged misconduct in eliciting assertedly 20 excluded evidence did not render Petitioner’s trial fundamentally 21 unfair. 22 that Petitioner had clenched his fist, stiffened his body and puffed 23 out his chest. 24 angry and uncooperative with the officers. 25 Petitioner refused the officers’ order to get down on the ground and 26 that the officers had to wrestle Petitioner to the ground and put him 27 in handcuffs (R.T. 141). 28 appeared “very amped up,” “irate” and “intoxicated,” and Petitioner The challenged evidence consisted of the officers’ testimony Other evidence (not excluded) showed Petitioner was Beck testified that Vanderkallen testified that Petitioner 19 1 did not heed the officers’ command to sit down (R.T. 244, 250). Campa 2 testified Petitioner smelled of alcohol and appeared “extremely upset” 3 and angry (R.T. 316). 4 little to what the jury already knew from other evidence concerning 5 Petitioner’s demeanor and conduct during his confrontation with 6 police. 7 instructed the jury not to consider stricken evidence and also 8 instructed the jury not to consider as evidence the statements and 9 questions of counsel (see R.T. 251, 316-17, 377-78, 424, 465-1; C.T. Thus, the challenged evidence would have added Moreover, the trial court struck the challenged evidence, 10 61-62). The jury is presumed to have followed its instructions. See 11 Weeks v. Angelone, 528 U.S. 225, 226 (2000). 12 circumstances, the Court of Appeal reasonably determined that the 13 challenged evidence did not render Petitioner’s trial fundamentally 14 unfair. 15 U.S.C. § 2254(d). Under these See Parker, 132 S. Ct. at 2155; Darden, 477 U.S. at 181; 28 16 17 18 2. Making a Speaking Objection Referencing the Victim’s Statement to Police 19 20 Assuming arguendo the prosecutor’s speaking objection suggested 21 to the jury that the victim had made a statement to police which was 22 not in evidence, the suggestion did not render Petitioner’s trial 23 fundamentally unfair. 24 had interviewed the victim shortly after the incident, so the jury 25 already knew the victim had made statements to the police (see R.T. 26 252-53, 255-56). 27 mistrial based on the challenged objection, the court gave the 28 following curative instruction: The evidence elsewhere showed that the police Furthermore, after denying a defense motion for 20 1 . . . [The] “objections by attorneys are not evidence. 2 You’re not to consider objections made by the attorneys for 3 any reason at all during deliberations. . . . [¶] 4 the thing that’s evidence [sic] is what the witness -- what 5 the witnesses’ answers are in response to certain questions 6 and also anything else I tell you you can consider as 7 evidence. So only I’m telling you the objections are not evidence. 8 9 (R.T. 288). As indicated above, the court also instructed the jury 10 not to consider stricken evidence and not to consider the statements 11 and questions of counsel as evidence (see R.T. 377-78, 424, 465-1; 12 C.T. 61-62). 13 instructions. 14 the Court of Appeal reasonably determined that the speaking objection 15 did not deny Petitioner a fundamentally fair trial. 16 S. Ct. at 2155; Darden, 477 U.S. at 181; 28 U.S.C. § 2254(d). Again, the jury is presumed to have followed its See Weeks v. Angelone, 528 U.S. at 226. Accordingly, See Parker, 132 17 18 19 3. Arguing That the Jury Should Protect the Victim and the Community 20 21 “In fashioning closing arguments, prosecutors are allowed 22 reasonably wide latitude and are free to argue reasonable inferences 23 from the evidence.” 24 (9th Cir. 1995) (citation omitted). 25 generally accorded less weight by the jury than the court’s 26 instructions and must be judged in the context of the entire argument 27 and the instructions.” 28 Cir. 1996) (citing Boyde v. California, 494 U.S. 370, 384-85 (1990)); United States v. McChristian, 47 F.3d 1499, 1507 “The arguments of counsel are Ortiz-Sandoval v. Gomez, 81 F.3d 891, 898 (9th 21 1 see also Waddington v. Sarausad, 555 U.S. at 195 (same). 2 3 Even extremely inflammatory comments in closing argument may not 4 render a trial fundamentally unfair. In Darden, the prosecutor had 5 told the jury that the petitioner was an “animal” whom the prosecutor 6 wished to see “with no face, blown away by a shotgun.” 7 132 S. Ct. at 2155 (quoting Darden, 477 U.S. at 180 nn. 11, 12; 8 internal quotations omitted). 9 the fundamental fairness of the trial. See Parker, Nevertheless, the Darden Court upheld The Parker Court observed that 10 in Darden the Court had upheld a closing argument “considerably more 11 inflammatory” than the one at issue in Parker. 12 2155. 13 standard is a very general one, leaving courts more leeway in reaching 14 outcomes in case-by-case determinations,” the Sixth Circuit’s grant of 15 habeas relief in Parker had been unwarranted. 16 2155 (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). 17 closing argument in Darden was also “considerably more inflammatory” 18 than the closing argument in the present case. Parker, 132 S. Ct. at The Parker Court stated that “particularly because the Darden Parker, 132 S. Ct. at The 19 20 In pre-AEDPA cases and federal criminal cases, the Ninth Circuit 21 has held that prosecutors may not urge jurors to convict defendants in 22 order to protect community values or to send a message to the 23 community. 24 Cir. 2011); United States v. Weatherspoon, 410 F.3d 1142, 1149 (9th 25 Cir. 2005). 26 addressed this issue. 27 law, Petitioner cannot obtain federal habeas relief on this claim. 28 See Parker, 132 S. Ct. at 2154 (chiding the Sixth Circuit for relying See United States v. Sanchez, 659 F.3d 1252, 1256 (9th However, the United States Supreme Court has never In the absence of controlling Supreme Court 22 1 on its own precedent, rather than Supreme Court precedent for the 2 proposition that due process prohibited a prosecutor from emphasizing 3 a criminal defendant’s motive to exaggerate exculpatory facts); see 4 also Lopez v. Smith, 135 S. Ct. 1, 4 (2014) (per curiam) (Ninth 5 Circuit erred in relying on its own precedent in affirming grant of 6 habeas petition); Carey v. Musladin, 549 U.S. 70, 77 (2006) (“Given 7 the lack of holdings from this Court [on the issue presented], it 8 cannot be said that the state court “unreasonabl[y] applied clearly 9 established Federal law.”) (internal brackets and citation omitted); 10 Moses v. Payne, 555 F.3d 742, 758–59 (9th Cir. 2009) (habeas relief 11 unavailable where the Supreme Court had articulated no “controlling 12 legal standard” on the issue). 13 14 In any event, Petitioner’s prosecutor did not urge the jury to 15 convict Petitioner solely to protect community values or to send a 16 message to the community. 17 length (e.g., R.T. 401-22, 465-2 - 465-20). 18 the jury that the attorney’s questions were not evidence and that 19 anything that did not “come from the witness stand” was not evidence 20 (R.T. 407). 21 the victim and sustained an objection to the reference to community 22 safety (R.T. 465-20 - 465-21). 23 court instructed the jury that the attorney’s remarks were not 24 evidence and that the jury should not consider stricken matter. 25 court also instructed the jury not to be swayed by bias, sympathy, 26 prejudice or public opinion (R.T. 372-73). 27 jury is presumed to have followed its instructions. 28 Angelone, 528 U.S. at 226. The prosecutor discussed the evidence at The prosecutor also told The court struck the prosecutor’s reference to protecting Furthermore, as indicated above, the 23 The As previously stated, the See Weeks v. 1 Under these circumstances, this Court cannot properly conclude 2 that the state court’s rejection of this claim was “so lacking in 3 justification that there was an error well understood and comprehended 4 in existing law beyond any possibility for fairminded disagreement.” 5 Parker, 132 S. Ct. at 2155; see Tak Sun Tan v. Runnels, 413 F.3d 1101, 6 1115-18 (9th Cir. 2005), cert. denied, 546 U.S. 1110 (2006) (trial 7 court’s instructions, including instructions that statements made by 8 the attorneys are not evidence and the jury must not be influenced by 9 passion or prejudice, eliminated any risk that petitioners were denied 10 due process from prosecutor’s statements arguably appealing to the 11 jurors’ passions); Drayden v. White, 232 F.3d 704, 713-14 (9th Cir. 12 2000), cert. denied, 532 U.S. 984 (2001) (prosecutor’s soliloquy in 13 voice of the victim did not render trial fundamentally unfair, where 14 evidence supported statements and court instructed jury that 15 attorneys’ statements were not evidence and that jury should not be 16 influenced by sentiment, sympathy, passion, prejudice or public 17 opinion); Sublett v. Dormire, 217 F.3d 598, 600 (8th Cir. 2000), cert. 18 denied, 531 U.S. 1128 (2001) (prosecutor’s improper urging of jury to 19 “send a message” so that the petitioner’s lengthy sentence could be 20 advertised on billboards to deter crime did not “infect the trial with 21 unfairness”; state court’s rejection of prosecutorial misconduct claim 22 based on the improper closing argument was not “contrary to, or an 23 unreasonable application of, clearly established federal law, as 24 determined by the Supreme Court of the United States”); Tolliver v. 25 Greiner, 2005 WL 2179298, at *11-13 (N.D.N.Y. Sept. 8, 2005), adopted, 26 2005 WL 2437021 (N.D.N.Y. Sept. 30, 2005) (prosecutor’s inappropriate 27 argument in closing that conviction of the petitioner was necessary 28 for the safety of the community did not entitle the petitioner to 24 1 federal habeas relief). 2 3 4. Harmless Error 4 5 For the same reasons the alleged prosecutorial misconduct did not 6 render Petitioner’s trial fundamentally unfair, the alleged misconduct 7 also did not have any “substantial and injurious effect or influence 8 in determining the jury’s verdict” within the meaning of Brecht. 9 Brecht, 507 U.S. at 637-38; Shaw v. Terhune, 380 F.3d at 478. See 10 11 5. Conclusion 12 13 For all of the foregoing reasons, Petitioner is not entitled to 14 habeas relief on Ground One of the Petition. Considered individually 15 or in combination, the alleged prosecutorial misconduct did not 16 (1) “so infect the trial with unfairness as to make the resulting 17 conviction a denial of due process”; or (2) have any “substantial and 18 injurious effect or influence in determining the jury’s verdict.” 19 20 II. Petitioner’s Boykin Claim Does Not Merit Federal Habeas Relief. 21 22 Under Boykin, a conviction may be constitutionally invalid if the 23 defendant pled guilty without waiving: (1) the right to a jury trial; 24 (2) the right to confront adverse witnesses; and (3) the privilege 25 against self-incrimination. 26 Cal. 3d at 132. 27 707, 687 P.2d 904 (1984) (“Sumstine”), the California Supreme Court 28 authorized a criminal defendant to bring a motion to strike a prior Boykin, 395 U.S. at 243; see also Tahl, 1 In People v. Sumstine, 36 Cal. 3d 909, 206 Cal. Rptr. 25 1 conviction on Boykin-Tahl grounds. Petitioner challenges the trial 2 court’s refusal to strike Petitioner’s 1992 convictions on such 3 grounds. 4 and the waiver of Petitioner’s Boykin/Tahl rights during the 1992 5 guilty plea did not suffice to prove Petitioner’s waiver of those 6 rights at that time. Petitioner argues that a minute order recording the giving 7 8 9 The 1992 minute order bears an “x” in the box next to the statement: “DEFENDANT PERSONALLY AND ALL COUNSEL WAIVE TRIAL BY JURY 10 AND BY COURT. COURT ACCEPTS WAIVER(S).” (C.T. 462). The minute order 11 also bears an “x” in the box next to the statement: “Defendant advised 12 and personally waives his right to confrontation of witnesses for the 13 purpose of further cross-examination, and waives privilege against 14 self incrimination.” (C.T. 462). 15 16 The California Court of Appeal rejected Petitioner’s Boykin/Tahl 17 claim on the merits. The Court of Appeal ruled that the 1992 minute 18 order sufficed to prove that Petitioner then had received and 19 personally waived his Boykin/Tahl rights (Respondent’s Lodgment 1, pp. 20 20-21; see People v. Parson, 2015 WL 6946013, at *9). 21 22 Petitioner’s claim fails for at least two reasons. First, “the 23 United States Supreme Court has never recognized California’s Sumstine 24 doctrine as creating a liberty interest that is protected by the 25 Fourteenth Amendment.” 26 (9th Cir.), cert. denied, 552 U.S. 962 (2007). 27 /// 28 /// Nunes v. Ramirez-Palmer, 485 F.3d 432, 443 26 1 Second, under Lackawanna County Dist. Attorney v. Coss, 532 U.S. 2 394 (2001) (“Coss”), a habeas petitioner may challenge a prior 3 conviction used to enhance the petitioner’s current sentence only 4 where: (1) there was a failure to appoint counsel in violation of the 5 Sixth Amendment; or (2) the petitioner cannot be faulted for failing 6 to obtain a timely review of a constitutional claim, either because a 7 state court refused to rule on a constitutional claim properly 8 presented to it, or because the petitioner uncovered “compelling 9 evidence” of his innocence after the time for review had expired that 10 could not have been timely discovered. Id. at 403-05. Petitioner’s 11 challenge to his prior convictions fails to satisfy either of these 12 criteria. 13 The minute order recording Petitioner’s plea and waiver of rights 14 indicates that Petitioner was represented by counsel at that 15 proceeding (see C.T. 462). 16 that a state court ever refused to rule on Petitioner’s properly 17 presented challenge to his prior conviction, or that Petitioner has 18 uncovered new “compelling evidence” of his innocence that could not 19 have been timely discovered. 20 constitutionality of his prior robbery convictions does not merit 21 federal habeas relief. 22 Ramirez-Palmer, 485 F.3d at 443 (Coss barred claim that prior 23 conviction was obtained in violation of Boykin/Tahl). 24 Petitioner is not entitled to habeas relief on Ground Two of the 25 Petition. 26 /// 27 /// 28 /// Petitioner does not assert a failure to appoint counsel. Nor is there any indication in the record Therefore, Petitioner’s challenge to the See Coss, 532 U.S. at 403-04; Nunes v. 27 Accordingly, 1 2 III. The Denial of Petitioner’s Romero Motion Does Not Entitle Petitioner to Federal Habeas Relief. 3 4 Petitioner contends the trial court erred by denying Petitioner’s 5 motion to strike one of Petitioner’s prior convictions pursuant to 6 People v. Romero, supra. 7 ruling that Petitioner had not shown the trial court abused its 8 discretion (Respondent’s Lodgment 1, pp. 25-26; see People v. Parson, 9 2015 WL 6946013, at *10-11). The Court of Appeal rejected this claim, The Court of Appeal reasoned: 10 11 . . . Parson’s actions in 1992 could have resulted in the 12 death of the liquor store clerk. 13 girlfriend’s daughter and was convicted of felony child 14 cruelty. 15 reincarcerated on probation violations. 16 from prison in 2008. 17 Parson was improving his circumstances. 18 from parole. He went back to school and trained as an 19 electrician. Parson married and was helping to support his 20 family. 21 In June, the neighbors telephoned the police when he and his 22 wife had a screaming argument after he locked her out of 23 their home. 24 the argument, neither the presence of the neighbors nor the 25 knowledge that they had telephoned the police for emergency 26 assistance deterred Parson from leaving his home, chasing 27 his teenage stepson with a knife, and threatening to kill 28 him. In 2005, he assaulted a He was placed on probation, only to be He was released Beginning in 2010, it appears that He was released His marriage, however, was not without conflict. When his wife returned with her son, escalating 28 1 The trial court found that after having had numerous 2 opportunities to improve his life, Parson still resorted to 3 homicidal violence when he became upset while inebriated. 4 The record supports the trial court’s findings. 5 a history of violence spanning three decades. 6 shot a store clerk. 7 teenager. In 2011, he chased his stepson with a knife, 8 threatening to kill him. 9 to reach a place of safety, the consequences of Parson’s 10 Parson has In 1992, he In 2005, he physically assaulted a If his stepson had not been able anger and intoxication could have been deadly. 11 12 (Respondent’s Lodgment 1, pp. 25-26; see People v. Parsons, 2015 WL 13 6946013, at *11). 14 15 Matters relating to sentencing and serving of a sentence 16 generally are governed by state law and do not raise a federal 17 constitutional question. 18 (2010); Rhoades v. Henry, 611 F.3d 1133, 1142 (9th Cir. 2010), cert. 19 denied, 565 U.S. 946 (2011); Miller v. Vasquez, 868 F.2d 1116, 1118-19 20 (9th Cir. 1989), cert. denied, 499 U.S. 963 (1991). 21 allegation that the trial court improperly refused to strike a prior 22 conviction under Romero does not state any cognizable claim for 23 federal habeas relief. 24 Cir. 2002), vacated on other grounds, 538 U.S. 901 (2003); Clements v. 25 Rackley, 2017 WL 1129948, at *11 (C.D. Cal. Feb. 13, 2017), adopted, 26 2017 WL 1115149 (C.D. Cal. Mar. 24, 2017) (“A California state trial 27 court’s refusal to grant a Romero motion, or to strike a defendant’s 28 prior conviction that will be used to enhance a defendant’s sentence See Wilson v. Corcoran, 562 U.S. 1, 4-5 Petitioner’s See Brown v. Mayle, 283 F.3d 1019, 1040 (9th 29 1 under California’s Three Strikes Law, does not present constitutional 2 violations that warrant federal habeas relief.”) (citations omitted); 3 Morrishow v. Price, 2014 WL 2003047, at *11 (E.D. Cal. May 15, 2014) 4 (“a claim that a state court abused its discretion in denying a Romero 5 motion is not cognizable on federal habeas review.”) (citations 6 omitted). 7 8 9 In any event, in light of Petitioner’s violent history, the trial court did not abuse its discretion under California law in declining 10 to strike the prior convictions. See People v. Carmony, 33 Cal. 4th 11 367, 378, 14 Cal. Rptr. 3d 880, 92 P.3d 369 (2004) (“[T]he 12 circumstances must be ‘extraordinary . . . by which a career criminal 13 can be deemed to fall outside the spirit of the very statutory scheme 14 within which he squarely falls since he commits a strike as part of a 15 long and continuous criminal record, the continuation of which the law 16 was meant to attack.’”) (citation and internal quotations omitted); 17 see also Mullaney v. Wilbur, 421 U.S. 684, 691 (1975) (“state courts 18 are the ultimate expositors of state law”). 19 20 21 For the foregoing reasons, Petitioner is not entitled to habeas relief on Ground Three of the Petition. 22 23 RECOMMENDATION 24 25 For the reasons discussed above, IT IS RECOMMENDED that the Court 26 issue an order: 27 /// 28 (1) accepting and adopting this Report and /// 30 1 Recommendation; and (2) denying and dismissing the Petition with 2 prejudice. 3 4 DATED: April 17, 2017. 5 6 7 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 31 1 2 NOTICE Reports and Recommendations are not appealable to the Court of 3 Appeals, but may be subject to the right of any party to file 4 objections as provided in the Local Rules Governing the Duties of 5 Magistrate Judges and review by the District Judge whose initials 6 appear in the docket number. 7 Federal Rules of Appellate Procedure should be filed until entry of 8 the judgment of the District Court. No notice of appeal pursuant to the 9 If the District Judge enters judgment adverse to Petitioner, the 10 District Judge will, at the same time, issue or deny a certificate of 11 appealability. 12 and Recommendation, the parties may file written arguments regarding 13 whether a certificate of appealability should issue. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Within twenty (20) days of the filing of this Report

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