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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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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TERRANCE LAMONT PARSON,

) NO. ED CV 17-136-CJC(E)
)
Petitioner,
)
)
v.
) REPORT AND RECOMMENDATION OF
)
KELLY SANTORO, Warden,
) UNITED STATES MAGISTRATE JUDGE
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Respondent.
)
______________________________)

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This Report and Recommendation is submitted to the Honorable

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Cormac J. Carney, United States District Judge, pursuant to 28 U.S.C.

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section 636 and General Order 05-07 of the United States District

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Court for the Central District of California.

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PROCEEDINGS

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Petitioner filed a “Petition for Writ of Habeas Corpus By a

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Person in State Custody” on January 26, 2017.

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Answer on March 13, 2017.

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allotted time.

Respondent filed an

Petitioner did not file a Reply within the

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BACKGROUND

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An Information charged Petitioner with assault with a deadly

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weapon (Clerk’s Transcript [“C.T.”] 20-23).1

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alleged that Petitioner had suffered 1992 convictions for robbery and

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attempted murder, which qualified as “strikes” within the meaning of

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California’s Three Strikes Law, California Penal Code sections 667(b)

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- (i) and 1170.12(a) - (d) (id.).2

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Petitioner had suffered a prior conviction for which he had served a

The Information further

The Information also alleged that

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prison term within the meaning of California Penal Code section

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667.5(b) (id.).

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The jury found Petitioner guilty of assault with a deadly weapon

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(Reporter’s Transcript [“R.T.”] 496-1 - 496-3; C.T. 127-28, 133).

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a bifurcated proceeding on the prior conviction allegations, the

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prosecution introduced a “prior packet” pursuant to California Penal

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Code section 969b (R.T. 510-59).

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///

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///

The court found that Petitioner was

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The prosecution later filed a First Amended Information
to correct a typographical error (Reporter’s Transcript 564; C.T.
136-39).

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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).
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the person identified in the “prior packet” (R.T. 565; C.T. 155).3

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Following a jury trial on the prior conviction allegations, the jury

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found the allegations to be true (R.T. 620-26; C.T. 152-53, 156).

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The trial court denied Petitioner’s motion to strike the prior

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conviction allegations made pursuant to People v. Superior Court

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(Romero), 13 Cal. 4th 497, 53 Cal. Rptr. 2d 789, 917 P.2d 628 (1996)

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(R.T. 902; C.T. 418).

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years to life (R.T. 903-04; C.T. 419-21).

Petitioner received a sentence of twenty-five

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The California Court of Appeal affirmed in a reasoned decision

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(Respondent’s Lodgment 1; see People v. Parson, 2015 WL 6946013 (Cal.

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App. Nov. 10, 2015)).

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Petitioner’s petition for review summarily (Respondent’s Lodgment 2).

The California Supreme Court denied

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SUMMARY OF TRIAL EVIDENCE

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The following summary is taken from the opinion of the California

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Court of Appeal in People v. Parson, 2015 WL 6946013 (Cal. App.

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Nov. 10, 2015).

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Cir. 2012), cert. denied, 133 S. Ct. 2766 (2013); Slovik v. Yates, 556

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F.3d 747, 749 n.1 (9th Cir. 2009).

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///

See Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th

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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).
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On July 17, 2011, Parson, who was in his house, and his

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wife, Tracey Jones-Parson, who was standing outside on the

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sidewalk, had a lengthy verbal altercation.

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telephoned the police.

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and his wife stopped arguing.

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returned a short time later with her 19-year-old son, Karl

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Palmer.

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challenging him to “come out of the house.”

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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

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there there’s gonna be problems, you don’t want me to come

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down.”

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Palmer and Parson continued to swear at each other

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until Parson came out of his house carrying a kitchen knife

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with a four-inch wooden handle and four-inch blade.

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shouted “you asked for it” and said that he was going to

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kill Palmer. Palmer ran into a neighbor’s house and shut the

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door. Neighbors contacted the police.

Parson

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When police officers Shannon Vanderkallen and David

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Campa arrived, Parson dropped the knife and walked toward

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them.

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the ground.

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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

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At trial, a neighbor, Brandy Jackson Villarreal,

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testified that Parson was holding the knife at his side when

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he approached Palmer.

Villarreal said that she stood
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between Parson and Palmer, and pushed Palmer toward her

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house.

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Parson was holding the knife at his side when he approached

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Palmer and came within 20 feet of him.

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another neighbor, testified that she was watching the

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incident from an upstairs window.

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Palmer came out of his house with a knife, telling the

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dispatcher that Palmer was “waving the knife around right

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now” and “threatening a teenage kid.” Marquez said that

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Villarreal’s cousin, Aubrey Beck, testified that

Nancy Marquez,

She telephoned 911 when

Parson came within 10 feet of Palmer.

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Officer Vanderkallen testified that he interviewed the

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eyewitnesses at the scene.

Beck told him that Parson had

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been chasing Palmer with a knife, saying that he was going

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to kill Palmer.

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was able to get within three to five feet of him.

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Villarreal told Vanderkallen that Parson had come very close

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to Palmer and appeared to be trying to stab him.

Parson was swinging the knife at Palmer and

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(Respondent’s Lodgment 1, pp. 3-5; see People v. Parson, 2015 WL

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6946013, at *2).

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PETITIONER’S CONTENTIONS

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Petitioner contends:

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1.

The trial court erred by failing to grant Petitioner’s motion

for a mistrial and a new trial on grounds of prosecutorial misconduct
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(Ground One);

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2.

The trial court erred by failing to strike Petitioner’s prior

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attempted murder and robbery convictions, which assertedly were

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obtained in violation of Petitioner’s rights under Boykin v. Alabama

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(“Boykin”)4 and In re Tahl (“Tahl”)5 (Ground Two); and;

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3.

The sentencing court erred by failing to strike one of

Petitioner’s prior convictions pursuant to People v. Superior Court
(Romero) (Ground Three).

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STANDARD OF REVIEW

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Under the “Antiterrorism and Effective Death Penalty Act of 1996"

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(“AEDPA”), a federal court may not grant an application for writ of

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habeas corpus on behalf of a person in state custody with respect to

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any claim that was adjudicated on the merits in state court

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proceedings unless the adjudication of the claim:

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decision that was contrary to, or involved an unreasonable application

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of, clearly established Federal law, as determined by the Supreme

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Court of the United States”; or (2) “resulted in a decision that was

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based on an unreasonable determination of the facts in light of the

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evidence presented in the State court proceeding.”

(1) “resulted in a

28 U.S.C. §

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395 U.S. 238 (1969).

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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).
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2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v.

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Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09

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(2000).

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“Clearly established Federal law” refers to the governing legal

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principle or principles set forth by the Supreme Court at the time the

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state court renders its decision on the merits.

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U.S. 34, 44 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003).

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state court’s decision is “contrary to” clearly established Federal

Greene v. Fisher, 565
A

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law if:

(1) it applies a rule that contradicts governing Supreme

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Court law; or (2) it “confronts a set of facts . . . materially

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indistinguishable” from a decision of the Supreme Court but reaches a

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different result.

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omitted); Williams v. Taylor, 529 U.S. at 405-06.

See Early v. Packer, 537 U.S. at 8 (citation

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Under the “unreasonable application” prong of section 2254(d)(1),

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a federal court may grant habeas relief “based on the application of a

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governing legal principle to a set of facts different from those of

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the case in which the principle was announced.”

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538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537

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U.S. at 24-26 (state court decision “involves an unreasonable

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application” of clearly established federal law if it identifies the

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correct governing Supreme Court law but unreasonably applies the law

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to the facts).

Lockyer v. Andrade,

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“In order for a federal court to find a state court’s application

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of [Supreme Court] precedent ‘unreasonable,’ the state court’s

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decision must have been more than incorrect or erroneous.”
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Wiggins v.

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Smith, 539 U.S. 510, 520 (2003) (citation omitted).

“The state

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court’s application must have been ‘objectively unreasonable.’”

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at 520-21 (citation omitted); see also Waddington v. Sarausad, 555

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U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th

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Cir. 2004), cert. dism’d, 545 U.S. 1165 (2005).

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habeas court must determine what arguments or theories supported,

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. . . or could have supported, the state court’s decision; and then it

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must ask whether it is possible fairminded jurists could disagree that

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those arguments or theories are inconsistent with the holding in a

Id.

“Under § 2254(d), a

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prior decision of this Court.”

Harrington v. Richter, 562 U.S. 86,

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101 (2011).

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2254(d)(1).”

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Habeas relief may not issue unless “there is no possibility fairminded

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jurists could disagree that the state court’s decision conflicts with

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[the United States Supreme Court’s] precedents.”

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for obtaining habeas corpus from a federal court, a state prisoner

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must show that the state court’s ruling on the claim being presented

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in federal court was so lacking in justification that there was an

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error well understood and comprehended in existing law beyond any

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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.

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In applying these standards, the Court looks to the last reasoned

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state court decision.

See Delgadillo v. Woodford, 527 F.3d 919, 925

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(9th Cir. 2008).

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state court summarily denies a claim, “[a] habeas court must determine

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what arguments or theories . . . could have supported the state

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court’s decision; and then it must ask whether it is possible

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fairminded jurists could disagree that those arguments or theories are

Where no reasoned decision exists, as where the

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inconsistent with the holding in a prior decision of this Court.”

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Cullen v. Pinholster, 563 U.S. 170, 188 (2011) (citation, quotations

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and brackets omitted).

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Additionally, federal habeas corpus relief may be granted “only

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on the ground that [Petitioner] is in custody in violation of the

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Constitution or laws or treaties of the United States.”

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2254(a).

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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

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of, applying the standard of review set forth in section 2254(d).

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Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).

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DISCUSSION

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I.

Petitioner’s Claims of Prosecutorial Misconduct Do Not Merit
Federal Habeas Relief.

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A.

Background

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The Court of Appeal described the factual background for
Petitioner’s claims of prosecutorial misconduct:

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1. Testimony in violation of a court order

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[Petitioner] filed a pretrial motion to exclude

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evidence concerning the circumstances of his arrest.

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argued that the police were not percipient witnesses to the

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alleged assault and that any testimony about his behavior
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He

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after the police arrived was more prejudicial than

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probative. ([California] Evid. Code, § 352.)

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specifically sought to exclude statements in Vanderkallen’s

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report that Parson had been “very amped up and refused to

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comply with [Vanderkallen’s] commands” and “refused to sit

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down and clenched his fist while puffing his chest out and

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[starting] to stiffen up.”

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Parson was muscular and appeared to be very irate, and that

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he determined that it was necessary to use physical force to

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arrest Parson because he [Vanderkallen] believed that Parson

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was going to attack and assault Officer Campa.

He

Vanderkallen also reported that

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The prosecutor opposed the motion in limine.

She

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argued that the evidence of Parson’s conduct after police

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arrived on the scene was relevant to show the defendant’s

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state of mind, and that Parson’s assault on Palmer and

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Parson’s actions toward the police constituted one

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continuous act of aggression.

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The trial court issued a tentative ruling allowing

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testimony about Parson’s rude and angry demeanor but

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excluding testimony of his aggressive behavior toward the

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officer and his lack of cooperation with the police.

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On direct examination, the prosecutor asked

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Vanderkallen, “Can you describe how [Parson] appeared?”

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Vanderkallen: “He was irate.

Kind of breathing

heavily, appeared to be intoxicated.”

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Prosecutor: “Okay. And when you are - when you asked

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him - when you told him to sit down and he did not sit down,

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did he appear otherwise cooperative, or how did he appear?”

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Vanderkallen: “He was not cooperative at all.”

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Prosecutor: “Okay. How did his body look?

What did his

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body look like?

Was there anything specific about what his

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body was doing that caused you to say that he was not

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cooperative?”

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Defense counsel: “Objection, your Honor, 402.”

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The trial court sustained the objection, explaining to

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counsel that the court had ruled that testimony about

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Parson’s rude, angry and intoxicated mannerisms could be

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admitted in evidence, but that any testimony about Parson’s

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aggressive behavior with the police officers was

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inadmissible.

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both police officers not to testify that they felt

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personally threatened by, or had physical contact with,

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Parson.

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prosecutor to elicit that Parson was “amped up” but would

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not allow her to elicit testimony concerning any type of

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physical contact with the police.

The prosecutor said that she had instructed

The trial court said that it would allow the

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When trial resumed, the prosecutor asked Vanderkallen

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to describe Parson’s physical appearance.

Vanderkallen

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replied, “He had his shirt off.

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irate.

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ourselves to sit down and get on the ground.”

He was very amped up,

We were giving him commands after we identified

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The prosecutor then asked, “When you use the word
‘amped up,’ what does that mean?”

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Vanderkallen: “Clenching his fist, his chest puffed
out, kind of ready to fight.”

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The trial court sustained defense counsel’s objection

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and struck the statement from the record.

During later

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discussions about Vanderkallen’s testimony, the trial court

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said, “I don’t think . . . the officer understood the

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[c]ourt’s order.”

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On direct examination, Officer Campa testified that

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Parson smelled of alcohol and that he appeared to be

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intoxicated and extremely upset.

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“[W]as there anything about his body and the way that he

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presented himself to you that suggested to you that maybe he

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was angry?”

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Campa: “Yes, ma’m.”

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Prosecutor: “What was that?”
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The prosecutor asked,

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Campa: “During our investigation, that’s as we’re

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dealing with Mr. Parson, I noticed . . . he clenched his

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fist and started puffing his chest and became stiff.”

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Defense counsel objected.

The trial court ordered the

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response stricken from the record.

Defense counsel moved

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for a mistrial, stating that the jury now had heard improper

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evidence about Parson’s conduct twice.

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proposed giving the jury a limiting instruction but defense

The trial court

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counsel objected, saying that an instruction would only call

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attention to the damaging statement.

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The trial court commented that Campa’s response had

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clearly violated its order.

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had drawn a bright line between the officers’ assessment of

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Parson’s demeanor on their arrival at the scene and any

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physical contact they subsequently had with him.

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the trial court added that it did not believe that the

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prosecutor had intentionally crossed that line.

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to defense counsel’s argument, the trial court acknowledged

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that the officer had violated an explicit order, but

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explained that the court was denying the motion for mistrial

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for lack of prejudice to the defendant.

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that even if the jury were to find that Parson clenched his

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fists and puffed up his chest when he encountered the

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police, the violation of the ruling, in and of itself, was

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not prejudicial to the defendant.

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The trial court stated that it

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However,

In response

The court found

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2. Speaking objection about victim’s statement

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During defense counsel’s cross-examination of

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Vanderkallen, counsel verified that Palmer was 19 years old

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and then asked, “You know he’s six foot one, correct?”

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At this point, the prosecutor said, “Object. Foundation

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and also hearsay unless the People are allowed to inquire as

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to the entire statement of Mr. Palmer.”6

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Defense counsel objected.

Outside the presence of the

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jury, the trial court told the prosecutor, “[There is] an

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unspoken rule against speaking objections . . . . [¶] [T]he

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speaking objection in this case is one that, basically, now

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tells the jury that a statement was made by the witness who

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apparently, I’m guessing, is not going to be here.

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may be some Crawford7 issues with it.

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have, basically, done by the speaking objection is [tell]

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the jury there’s a lot there and I want to get into it, but

So there

And . . . what you

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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.

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(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].)
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you guys don’t know about it.

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intent.

I don’t think that was your

But that’s the effect speaking objections have.”

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Defense counsel moved for a mistrial.

The trial court

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denied the motion, stating that although the court was “not

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happy” with the prosecutor, the speaking objection was not

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prejudicial to the defendant in view of the totality of the

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evidence.

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objections made by the attorneys were not evidence and not

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The trial court instructed the jury that

to consider the attorney’s statements during deliberations.

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3. Improper statements during rebuttal argument

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During closing argument, the prosecutor asked the jury

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to find the defendant guilty of assault with a deadly

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weapon. She said, “We ask that you hold him accountable;

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that you protect the victim that wasn’t here to talk to

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you — ”

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Defense counsel objected.

The trial court sustained

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the objection and ordered the remark stricken.

The

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prosecutor continued, “ — that you do the right thing; that

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you look after the safety of your community; that you

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uphold — ”

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Defense counsel objected again and asked the remark to

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be stricken.
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Prosecutor: “ — the law.”

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The Court: “Sustained.”

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Prosecutor: “ — that you uphold the law; that you
convict the defendant.

Thank you.”

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After the jury retired to deliberate, the court
addressed the prosecutor, stating, “[W]hen you tell the jury

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to ‘protect the community,’ that’s improper argument.

I

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mean, you have to know for future reference, that’s not

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something you can argue . . . . [Y]ou’re asking the jury to

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do more than what their job is.

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the facts are.”

Their job is to decide what

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Defense counsel moved for a mistrial.

The trial court

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denied the motion, stating that if the defendant was

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convicted, counsel could bring a motion for a new trial, and

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the court would review the transcripts to make sure its

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ruling was correct.

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concerned about several issues during the trial and each

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time took immediate steps to correct any possible confusion

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on the jury’s part.

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those steps were sufficient to ensure that the defendant

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received a fair trial.

The trial court said that it had been

The trial court was satisfied that

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After the jury returned its verdict, Parson filed a
motion for a new trial, claiming prosecutorial misconduct
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for eliciting improper evidence, making a speaking

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objection, and making improper statements during argument.

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The trial court commented that in some instances, the

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prosecutor’s conduct had been “shock[ing].”

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exception of Vanderkallen’s improper response to her

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question, which the court believed the prosecutor had not

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expected, the prosecutor had been “remiss.”

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court stated that the appropriate analysis was whether the

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cumulative effect of the prosecutor’s conduct was

With the

However, the

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prejudicial to the defendant.

The trial court had sustained

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defense counsel’s objections and struck the answers and

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statements from the record.

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reasonable doubt that the errors complained of had not

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contributed to the jury’s verdict, and denied the motion for

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new trial.

The trial court found beyond a

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(Respondent’s Lodgment 1, pp. 7-13; see People v. Parsons, 2015 WL

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6946014, at *3-5) (original footnotes renumbered).

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Petitioner contends the prosecutor committed misconduct by

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allegedly: (1) eliciting excluded testimony; (2) making a speaking

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objection; and (3) improperly exhorting the jury, in closing argument,

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to protect the victim and the community.

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these claims on the merits (Respondent’s Lodgment 1, pp. 14-18; see

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People v. Parson, 2015 WL 6946013, at *6-7).

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ruled that the prosecutor’s errors were not “so egregious that they

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deprived [Petitioner] of a fundamentally fair trial under federal

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constitutional standards” (Respondent’s Lodgment 1, p. 15; see People
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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

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alleged errors prejudiced Petitioner (Respondent’s Lodgment 1, pp. 16-

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18); see People v. Parsons, 2015 WL 6946013, at *6).

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6

B.

Discussion

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8

Prosecutorial misconduct merits habeas relief only where the

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misconduct “‘so infected the trial with unfairness as to make the

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resulting conviction a denial of due process.’”

Darden v. Wainwright,

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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
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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.

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15
16
17
18
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28

Within twenty (20) days of the filing of this Report