Nathaniel Royal v. Kernan

Filing 17

ORDER Denying Petiton for a Writ of Habeas Corpus, signed by District Judge Roger T. Benitez on 4/15/09. (Gil-Garcia, A)

1 2 3 4 5 6 7 8 9 10 11 12 13 vs. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 N a th a n ie l Royal ("Petitioner"), a state prisoner proceeding pro se and in forma pauperis, se e k s a writ of habeas corpus under 28 U.S.C. § 2254. (Doc. No. 1.) Petitioner challenges his K in g s County Superior Court conviction of conspiracy to possess a controlled substance in p ris o n , as well as his sentence of twenty-five years to life in state prison, presenting eight g ro u n d s for relief. Respondent has filed an Answer. (Doc. No. 11.) Respondent contends habeas relief is unavailable because claim one is procedurally barred, and the adjudication of all other claims in the Petition was neither contrary to, nor an unreasonable application of, clearly established f e d e ra l law, nor was it based on an unreasonable determination of the facts. Petitioner has f ile d a Traverse. (Doc. No. 14.) /// S . KERNAN, Warden, R e sp o n d e n t. N A T H A N I E L ROYAL, P e t i t io n e r , C A S E NO. 1:07cv0002 RTB (BLM) O R D E R DENYING PETITION FOR A WRIT OF HABEAS CORPUS

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION

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T h is matter has been reassigned to the Honorable Roger T. Benitez, United States D istric t Judge for the Southern District of California. (Doc. No. 15.) For the reasons set forth b e lo w , the Court DENIES the Petition on the merits. I . TRIAL COURT PROCEEDINGS T h e statement of facts in this case is taken from the unpublished Court of Appeal o p in io n in People v. Royal, slip op. No. F045166 (Cal.Ct.App., 5th Dist., January 11, 2 0 0 5 ). (Lodgment No. 4.) The Court gives deference to state court findings of fact and p r e s u m e s them to be correct. See Sumner v. Mata, 449 U.S. 539, 545-47 (1981). Because th e factual history is length and detailed, it is recounted in its entirety. T h e events in question began in April of 2003, less than two years into an 1 8 -ye a r sentence Royal, known to his friends as "Rock" or "Rock Solid," was s e rv in g at Corcoran State Prison for armed robbery. The other principal p a rtic ip a n t in the alleged conspiracy was his girlfriend, Danyell Scott. Three m o re people also figured in the events: Royal's former girlfriend, Crystal C a rb a u g h , with whom he has a child, Savannah; a friend named Marlena Hall; a n d Marlena's boyfriend, Demon Hammer, whom Royal often identified as " F o lk s" or "my Folks," a street term meaning someone who is "like family." All f o u r of these other people-Danyell, Crystal, Marlena, and Demon-lived at the tim e in or near Las Vegas, Nevada. T h e r e were four recorded telephone conversations, and eight intercepted letters, p re se n te d as evidence of the conspiracy. Generally speaking, they show Royal a sk in g Danyell to pick up something-identified often as "girl" or "the girl"-from D e m o n or Crystal, and deliver it to him at the prison during an upcoming visit. O fficer Ryan Pear, the prosecution's expert witness, testified that he believed the te r m "girl" referred to a controlled substance. Royal testified in his own defense th a t the term actually referred to his share of the still-unrecovered loot, or money f ro m the sale of the loot, that he, Demon, and others had stolen during the je w e lry store robbery that landed Royal in prison. The stolen jewelry was e stim a te d to be worth $500,000. T h e In Limine Motion T h e defense moved in limine to exclude the testimony of Officer Pear as to his o p in io n that the term "girl" in Royal's phone calls and letters was a reference to d ru g s . Defense counsel argued: "... I think that that would be prejudicial and u n f a ir for the People to utilize officers just to say that's their interpretation b e c au s e ... there's no glossary of terms ... that are used in lieu of ... words like c o c a in e ." T h e prosecutor submitted that Officer Pear would testify, based on his training a n d experience, that he believed "girl" referred to drugs. Asked what training a n d experience he had in particular with respect to the use of code words in p riso n to refer to drugs, Pear replied he had been assigned for the past two years to an "Investigative Services Unit" at Corcoran State Prison, one of whose p u rp o s e s was to uncover narcotics trafficking in the prison; that he had received

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c la ss ro o m and on-the-job training on that subject; and that he had conducted n u m e r o u s investigations and monitored hundreds of prisoners' telephone calls. T h e court, based on this offer of proof, denied the in limine motion. It explained:

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 /// O f f ice r Pear was then the first witness called by the prosecution. He began his te stim o n y by describing the training he had received in the identification of c o n tro lled substances, and his experience in investigating drug smuggling in p ris o n . On voir dire by the defense however, he acknowledged that, in all the p riso n ers' calls and letters he had monitored, he had never encountered the word " g i rl" used to refer to illegal drugs. But he had, he said, seen the word in " p e rh a p s three" affidavits submitted by other officers in support of their requests f o r search warrants. T h e court also ruled that Officer Pear could not rely as a basis for his opinion on s ta t e m e n t s made to him by Danyell, who reportedly told him in a postarrest in t e rv i e w that she had understood Royal's use of the word "girl" to mean drugs. T h a t is, the officer was precluded from testifying about what Danyell had said to him in the interview. " I would caution the People about having him opine about the m e a n in g of other words or phrases whose meaning is a clear E n g lis h meaning and don't think it's anything different than that b ec au se I don't think that would be a proper subject of expert t e s t i m o n y. " " B a se d on the offer of proof as to the officer's qualifications, he w o u ld seem to have sufficient expertise to be entitled to give an e x p e r t opinion in the meaning of the word `girl' as used in these c o m m u n ic a ti o n s . Motion to exclude that testimony would be d e n ie d . " T h a t appears to me to be a subject matter about which the normal c itiz e n would not likely have much knowledge, training or e d u c a tio n and that an appropriately qualified expert witness could e n lig h te n the average citizen. Therefore [sic] is a proper subject o f expert testimony. " T h e question appears to be twofold. The first question is whether th e subject matter of the proffered testimony is one in which e x p e rt testimony is appropriate. [¶] Normally anyone can have an o p in io n on ... what a particular word or phrase means in an oral or w ri tt e n communication and the jury is in as good a position as a n yo n e else to interpret ordinary or even slang English. " In this case based on the offer of proof it is, as I understand it, th a t in the prison setting where inmates are talking about c o n tro lle d substances that they normally use code words not o th erw ise associated with controlled substances. [¶] And further, th a t the proffered witness would be explaining the significance of th e use of the word `girl' in the context in which it's used in the c o m m u n ic a tio n s to relate the use of the word ... to various p r a c tic e s involving using or smuggling controlled substances.

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T h e court ruled, over a defense objection Officer Pear did not qualify as an e x p e rt, that the prosecution could question him as an expert "in the field of n a rc o tic s trafficking in a prison setting." T h e Recorded Telephone Conversations T h e April 2d Conversations T h e first two of the phone conversations took place, one shortly after the other, in the early evening of April 2, 2003. Royal called Danyell in each instance. M u c h of the first conversation was taken up with their quarrelling; Danyell was u p s e t that Royal's collect calls from prison had run up her phone bill to almost $ 3 0 0 .FN 1 And she says: "I'm mad at you because you ain't sent me no money f ro m the last what I did." A few minutes into the call, Royal tells Danyell to "get th a t from my folks [Demon] for me," without saying what "that" is, to which D a n ye ll replies "I don't want to deal with those people." (There was a dispute o f some sort going on between Danyell and Demon.) Royal says he will tell " h im " (Demon) to give "it" to Marlena, and asks Danyell to get "that" from M a r le n a . Danyell protests: "I don't want to be involved with that to be honest w ith you, you know I'm saying. All that I'm fittin to be off papers [parole] in tw o months." Royal gives Danyell "my Folks" phone number and tells her to c a ll "and tell him I said give you that." "Tell him I don't want some Christmas p ic tu re s. Tell him I want my daughter. Tell him my daughter pictures. [¶] ... [¶] M y Girl." Just before time runs out on the call, and the line is disconnected, D a n ye ll finally agrees to call "him" (Demon) and take care of Royal's " b u s in e s s ." F N 1 . Royal had been transferred only recently to Corcoran State P r is o n from a prison in Tehachapi, which presumably is where he w a s housed when these earlier phone charges were incurred. His r e c e n t arrival at Corcoran also probably explains why the first p h o n e call recorded there seems to begin in the midst of on o n g o in g conversation with her about "that." A s k e d about Danyell's statement to Royal that "I'm mad at you ...," Officer Pear te s tif ie d , without an objection from the defense, that he thought it meant: "Miss S c o tt has introduced a controlled substance to, I believe, Inmate Royal p re v io u s ly in which case he didn't properly provide her with funds afterwards." H is opinion, he said, was "[b]ased simply upon that statement. It's consistent." R o ya l, on the other hand, would later testify that Danyell was upset because she h a d not received a cut of the loot from the jewelry store robbery. "That was for th is case I'm in prison for is jewelry store robbery. None of the jewelry was o b ta in e d . All the jewelry got away. My Folks, Demon, have all my jewelry. [¶] S o m e of my jewelry got sold through my mother, and Danyell sold my mother. M y mother kept all of the money so that she didn't give Danyell none of the m o n e y. I didn't get none of the money. So that's what she's speaking of. She d id n 't get no cut and that was it ." T h e prosecutor then asked Officer Pear, again without an objection, what he th o u g h t it was that Danyell was to get from Folks. Before Pear could answer, the c o u rt, on its own initiative, ruled it was inadmissible. However, shortly a f te rw a rd , the prosecutor asked Pear his opinion as to the meaning of "my girl." O ff icer Pear answered, without objection, that he believed it was "a code word f o r referencing a controlled substance." "My opinion," he continued, "is based u p o n the content of the telephone calls that I monitored as well as the suspicious -407cv0002

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v e r b ia g e in the out-going correspondence from Nathaniel Royal." The defense th e n objected to Pear's use of the term "suspicious," and the court struck that w o rd only. R o ya l would later testify that "my girl," although it sometimes referred simply to his daughter or his girlfriend, was intended more generally to refer to the je w e lry store loot. "I was trying to get the rest of any jewelry from Demon b e f o re he sell all the rest of my jewelry and put it in her [Danyell's] hands so she c a n sell it so I can get some of the money that I'm doing time for before all this je w e lry is gone." T h e second April 2d conversation resumed where the first one left off. Royal tells Danyell again that "the main thing just get in touch with my folks and tell h im I want my girl, you know I'm saying, cause I ain't seen her in a while." D a n ye ll agrees. O f f ic e r Pear was again permitted to testify, without objection, that he believed th e term "girl" referred to a controlled substance. T h e April 11th Conversations

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 R o ya l's April 13th letter to Danyell 27 28 " ... Listen Crystal got my girl from Demon, & it's waiting for you to pick up.... Now I need my girl all of it & just a little of that girl T h e third and fourth phone conversations, this time between Royal and Crystal, to o k place nine days later on April 11th, again in quick succession. In the third o n e , after some talk about their daughter Savannah, Royal asks Crystal to call D a n ye ll to find out if she (Danyell) is coming to visit him. Crystal calls and e sta b lish e s a three-way telephone connection with Danyell. Danyell asks Royal: " A re you gonna send me that or you did already?" Royal replies: "I already told m y people to send that." Officer Pear testified, without objection, that he b e lie v e d the word "that" referred to a controlled substance. R o ya l calls Crystal back and asks her to create a three-way connection with F o lk s . Folks tells Royal: "But I got that ready for you so whenever you want run, I run to other girl [Crystal] man. I don't really feel like dealing with her [ D a n ye ll]." Royal then tells Crystal to "[j]ust get that from him [Folks] for me a n d give it to Danyell, could you do that?" She agrees. Folks promises to take ca re of it Sunday. (The call was made on a Friday.) "You talkin about girl rig h t? " Royal asks. "Yeah," Folks replies, "have her here." Folks hangs up, and R o ya l tells Crystal to call Danyell and "tell her you gonna have something for h e r Sunday," and "I said get her ass up here next week." Once more, Officer P e a r was permitted to testify, without objection, that he believed the word "that" a s used by Folks and Royal referred to a controlled substance. T h e Intercepted Letters T h e following Sunday, April 13th, Royal wrote four letters-to Danyell, Crystal, F o lk s , and Marlena-all of which were intercepted and copied by Officer Pear b e f o r e he sent them on to their intended recipients. Pear read each of the letters, in their entirety, to the jury. The following are excerpts, based on the letters th e m se lv e s rather than on the transcription of Pear's reading of them.

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stu f f , put it all in one rub [condom]. Baby, about this long. [small v ertica l line about a quarter inch in length]" " ... I will give you the money I been saving here that I been h u s tlin g with that girl. ... The reason you didn't get no cut last tim e Because I been saving everything so when I come home we c o u ld have a few dollars to do the things we need to do, like going o u t of town to get our stuff & money...." FN2 F N 2 . Royal told Danyell several times in his letters a n d phone calls that he would be getting out of p ris o n in a few months, and she was to use the m o n e y he would give her to rent an apartment for th e two of them. In fact, Royal had been sentenced in September of 2001, less than two years earlier, to a term of 18 years in prison for the two jewelry s to re robberies (with a gun use enhancement) he h a d committed with Demon and others in Barstow. H e testified he lied to Danyell "because normally if a woman find out the timeframe I have left she w o u ld leave, so I just wanted to see her as much as I possibly could see her." " ... Now I told you to been come get this money from this girl that I have here with me, it's all 100 dollars bills. I'll slip it to you in a toil paper. It's just [$]1400...." " ... You know I don't asks you for shit if I don't need it. I need my g irl so I can keep making a few dollars for us. See, I think about b o t h of us not just myself.... Bae [Babe] listen Crystal have my g irl & some other shit. Go get it now from Crystal. Baby I need all th a t girl & a little of that other thing. And just put up the rest of it till I come home. You know how to handle that girl, & thank you f o r keeping it real...." O ff icer Pear testified, without objection, that he believed Royal's use of the term " g irl" referred to a controlled substance "he wished for Danyell to introduce into th e institution for him," and that "hustling the girl" meant Royal was dealing d ru g s in the prison. A t the next recess, outside the presence of the jury, the court, on its own in itia tiv e , advised counsel as follows: "An expert witness such as Mr. Pear is ce rtain ly qualified to give opinions as to the procedures and devices that are a v a ila b le to prison inmates to smuggle contraband.... [¶] He's qualified to give ex p ert opinion as to how contraband is referred to commonly by inmates. He's n o t qualified-it's not an appropriate area of expert testimony for him to opine w h a t the defendant meant by saying something. [¶] He's not a mind-reader and h e 's not in any better position than the jury is to say what Mr. Royal meant." R o ya l's April 13th letter to Crystal:

26 27 28 " ... Did you call my Folk & get that for me. If not call him & have h im drop it off to you. Look I need you to only give her only all th e white & a handful of the other thing. And put up the rest of the g re e n for me, till I call for it. You could have some of the green if you want to. But don't mess with that white it's business. But -607cv0002

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d o one more thing for me put all the white and the handful of g re e n in a rubber for me, & tie it tight. Call her to come get it ok." O f f ic e r Pear testified, without objection, that he believed the words "that" and " it" in the letter referred to a controlled substance. The court sustained an o b je c tio n to Pear's testimony the word "white" referred to a narcotic "probably." R o ya l would later testify that "white" referred to diamonds and "green" referred to money, and that he wanted Crystal to put all the jewelry ("the g irl" )-d ia m o n d s , Rolex watches, and "other jewelries"-in a condom to prevent th e m from getting scratched. "I've been robbing jewelry stores basically since I was young. And that's my method to keep it from getting scratched, and that's w h a t works for me so it don't get scratched." FN3 F N 3 . In addition to the two armed robberies for which he was th e n in prison, Royal acknowledged having been previously c o n v i c t e d of two counts of armed robbery in Louisiana in 1991, a n d one count of attempted armed robbery with the use of a d e a d ly weapon in Nevada in 1994. R o ya l's April 13th letter to "Allen Folks": " ... Whats up Bro? [¶] Sorry about what the hoe [Danyell] did. Y o u should have put hands on the hoe. After this last run, I am f in ish with the hoe. So do whatever you need to.... Just wait till I g e t my work from the hoe. Did you give that to Crystal yet? ... Let C r ys t a l know how much girl so I'll know what to look for from o ld girl [Danyell]." O f f ice r Pear testified, without objection, that making a "run" is a reference to " in tro d u c in g a controlled substance into the institution, making a controlled su b stan ce deal." The court sustained an objection to Pear's testimony the word " g irl" refers to a controlled substance. The prosecutor thereafter made no further in q u i rie s of Officer Pear regarding the meaning of the words in Royal's letters. R o ya l's April 13th letter to Marlena:

19 20 21 22 23 24 25 26 27 28 R o ya l's April 17th letter to Danyell: " ... Baby whats up am I going to see you this weekend the 26 or n e x t weekend the 3 of May. Look all bull shit aside, you need to ... handle my business all that girl. I am depending on you; I have to stay at my money.... Baby listen Marleena can't think, she will -707cv0002

" ... I never stop hustling. I hustle here & got more money then D an yell have to here name. Thats why I need you to rent a car & d riv e with Danyell up here, so I could give here this money. We n o t allowed to have cash, but we still get it, & serve like they d o in g on the street. I need to get her this money before they fine it. So she could get the apartment [where Royal planned to stay w h e n released from prison].... I got to slid here the money when th e officers isn't looking." O f f ic e r Pear intercepted four more letters written by Royal during the next two w e e k s . He read portions of each one to the jury.

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d o whatever you tell her.... Tell the girl to get the car & come take a ride with you up here.... Baby get that from Crystal, I really need th a t.... [¶] ... [¶] ... And take care of that business ok." R o ya l's April 17th letter to "Demon Hammon": " `Folk, whats up? Dogg I need you to drop that off to Crystal A .S .A .P .... Ok Dogg, I know you are working & busy. But handle th a t before this coming weekend the 26, it got to be before that. I h o p e you already went threw there.... Get at me & Crystal A .S .A .P . homie. This can't wait till tomorrow. Make that run for m e now...." R o ya l's April 23rd letter to Danyell:

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 S o m e tim e after she received this last letter apparently, but before her visit to the p ris o n on May 11th, Danyell wrote a letter to Royal in which she said: " `I got yo u r girl so please stop telling me the same thing over and over again. I know -807cv0002

" ... I need to see you as A.S.A.P.... & I need that girl so get it from C rys ta l are call my Folks & tell them you are calling for your man to get that girl. Please put y'all differents aside & do this for me o k . But Crystal should have it ok. You need to be up her know la te r then the 10 of May ok. I don't want to here know excuses a b o u t coming to see me or about my business girl ok." " ... Baby, be cool. I need to see you & I need that girl. Thats what yo u need to handle what I asks you...." " ... Look you need to get my girl to me so I could stay at this m o n e y for us.... Focus on what you need to handle please. If I tell yo u its cool it is what I say it is ok, Boo. Baby no later than the 1 0 th of May ok Baby? ... get my work from Crystal or make M a rle n a call & get it. She can't think you make her do whatever yo u need her to do...." R o ya l's April 27th letter to Danyell: " ... I don't want to hear know shit. I been getting at you a lot to g e t my girl from Crystal or from my Folks .... this is business so p u t the bull shit a side & call & get her if you don't have it ok. A n d don't for get to rubber it & tape it up to make her firm ok, th a t's important. All the girl & green a little in one rubber, handle th a t, thank you. I know I could depend on you...." " ... This lock down is suppost to be for today Sunday. Just call to b e safe ok.... Call & make sure I could have contact visit before c o m in g ....[ ¶ ] Baby don't when I tell you something I handle it? P u t the girl dog in the house before you leave. Let her out the h o u s e , as you wait for Rock to come home...." ". .. Call up here Friday Are the day you get this letter & make sure B l a c k s are having visits.... Baby this is important because they m ak in g blacks visit behind a glass.... Look, if they tell you we are v is itin g behind the glass don't come see me. Look don't come see m e if we got to visit behind the glass...."

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w h a t I have to do with her.... I'm doing my best to come see you on the 3rd, o k ay? ... [¶] Chill your ass out and stop ordering me, okay?'" D a n y e ll Comes to Visit on May 11, 2003 D a n ye ll Scott arrived at Corcoran State Prison at about 9:30 a.m. on Sunday, M a y 11, 2003, and asked to visit with Royal. She was required to undergo an " u n c lo th e d body search," which yielded a small plastic package of white powder s h e had concealed in her vagina. The powder was later determined to be 9.07 g r a m s of "fairly pure" cocaine. This was described as "a lot of substance," c a p a b le of producing 900 standard 10-milligram doses, and said to be worth a b o u t $2,700 in the prison. Danyell was arrested, and Royal was moved from the g e n e ra l prison population into an administrative segregation cell. A search of his p e rs o n (not including body cavities) and belongings failed to uncover either m o n e y or drugs. R o ya l would later testify he had not been aware Danyell was coming to see him o n that day, and he had not asked her to smuggle drugs to him. The defense p o in ted out that Danyell had a previous conviction for drug trafficking in L o u isia n a , and it suggested she had actually intended to smuggle the cocaine to h e r mother, who was in a federal prison in California somewhere. T h e Information

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 O n May 13, 2003, the District Attorney of Kings County filed a criminal c o m p l a in t alleging five counts against Danyell individually, and five conspiracy c o u n ts against her and Royal together, for possession, possession for sale, and f o r transportation of cocaine. Both were held to answer, and an eight-count in f o rm a tio n was filed against them later the same month. A determination was la te r made to try the two defendants separately, and an amended information was f iled against Royal alone. It alleged Royal had conspired with others to commit o n e or more of the following crimes: (1) unauthorized possession of a controlled s u b s t a n c e in a state prison (Pen.Code, § 4573.6); and/or (2) possession of a c o n tro l le d substance for sale (Health & Saf.Code, § 11351); and/or (3) f u rn is h in g a controlled substance to a person in state prison (Pen.Code, § 4 5 7 3 .9 ) . T h e information alleged five overt acts in furtherance of the conspiracy: (1) R o ya l arranged for controlled substances to be purchased or obtained; (2) he in stru c ted Danyell from whom to obtain them; (3) he instructed Danyell how to p a c k ag e them; (4) Danyell entered Corcoran State Prison with cocaine secreted in her vagina; and (5) she was in possession of 9 grams of cocaine. T h e information also alleged that Royal had suffered two prior violent or serious f e lo n y convictions-i.e., two counts of second degree robbery in 1991-for p u rp o s e s of the three strikes law. R o y a l's September 6, 2003 Letter O f f ic e r Pear continued to monitor Royal's mail from prison pending trial of the c h a rg e s against him. On September 6, 2003, Royal sent a letter to Crystal (ad d resse d to their daughter Savannah). The letter, as read to the jury by Pear, sta ted in part:

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" L o o k , my lawyer investigator will call you soon to get a s ta te m e n t from you, and he will get one from my Folks and M a rle n a , too. So just let him know like you told me on the phone, h e never came and call you and told you he would take care of s e n d in g me my money that he was going to drop off to you and s e n d me or give it to Danyell. You don't know nothing about no c o d e words or what they mean, but in Vegas, girl is known to be c a lled money because girls make more money in Vegas so people ju s t call girl money. " Y o u don't know nothing about no drugs, and you don't have n o th in g to do with drugs or people that deal drugs. All you know m y Folks was dropping some money off to my daughter for her s k a te s and for me. That's it. Nothing else. You are not in this so d o n 't worry. I need that statement from you so talk to him and I a m calling you, my Folks and Marlena to testify at my trial if I go to trial...." T h e Verdict F o llo w in g a four-day trial in January of 2004, the jury returned a verdict finding R o ya l guilty of conspiring to possess a controlled substance in state prison (P e n .C o d e , § 4573.6), and finding that he committed the offense while confined in state prison. (Pen.Code, § 1170.1, subd. (c) [when consecutive sentence im p o s e d , the term of imprisonment runs from time person would otherwise have b e e n released from prison].) R o ya l had previously admitted the two strike allegations.

15 16 17 18 19 20 21 22 23 24 25 26 27 28 T h e court sentenced Royal, pursuant to the three strikes law, to a term of 25 ye a rs to life in state prison, consecutive to the term he was already serving. (L o d g m e n t No. 4, People v. Royal, No. F045166, slip op. at 2-14.) I I . STATE COURT PROCEEDINGS P e t itio n e r appealed his conviction to the California Court of Appeal, Fifth Appellate D is tric t, case number F045166, raising two grounds for relief. Appellant's opening brief was filed on August 6, 2004, Respondent's Brief was filed on September 1, 2004, and Appellant's R e p ly Brief was filed on September 21, 2004. The Court affirmed Petitioner's conviction and s e n te n c e in an unpublished opinion filed on January 11, 2005. (Lodgment No. 4.) O n July 27, 2005, Petitioner filed a petition for writ of habeas corpus in the Kings C o u n ty Superior Court, raising four grounds for relief. (Lodgment No. 5, Case No. 05W 0137A .) On November 14, 2005, the Kings County District Attorney filed an informal response. (L o d g m e n t No. 6.) The Superior Court denied the petition on December 13, 2005. (Lodgment N o . 7.)

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O n January 18, 2006, Petitioner filed a petition for a writ of habeas corpus in the C a lif o rn ia Supreme Court, raising nine grounds for relief. (Lodgment No. 8, Case No. S 1 4 0 7 6 8 .) The petition was summarily denied on November 29, 2006. (Lodgment No. 9.) III. PETITIONER'S CLAIMS P e titio n e r claims that his rights to due process, effective assistance of counsel, and a fair trial under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, were v io la te d by: (1 ) The trial court's error in qualifying Officer Pear as an expert, and allowing him to te stif y on the use of code words in prison communications to refer to controlled substances as it related to Petitioner's case; (2 ) The trial court's error in failing to instruct the jury, sua sponte, pursuant to CALJIC 6 .2 4 , on evaluating co-conspirator hearsay statements; (3 ) The prosecutor's prejudicial misconduct in questioning Officer Pear on inadmissible m a tte r s; (4 ) Trial counsel's failure to move for a mistrial due to prosecutorial misconduct; (5 ) Trial counsel's failure to object to Officer Pear's testimony on the meaning of c e r ta in words in Petitioner's phone calls and letters; (6 ) Trial counsel's failure to exercise peremptory challenges against prospective jurors w h o were acquainted with or related to correctional officers at the prison where Petitioner was h o u s e d , and where the charged crime occurred; (7 ) Trial counsel's failure to investigate and provide statistical evidence in support of P etitio n er's objection to the composition of the Kings County jury venire due to underre p re se n ta tio n of African-Americans; and (8 ) Trial counsel's failure to move for a change of venue from Kings County due to its h ig h population of correctional officers and other prison personnel. /// /// ///

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I V . SCOPE OF REVIEW T i tle 28, United States Code, § 2254(a), sets forth the following scope of review for f e d e r a l habeas corpus claims: T h e Supreme Court, a Justice thereof, a circuit judge, or a d is tric t c o u r t shall entertain an application for a writ of habeas corpus in b e h a lf of a person in custody pursuant to the judgment of a State c o u rt only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 2 8 U.S.C.A. § 2254(a) (West 2006) (emphasis added). A s discussed in detail below, the claims presented in the federal Petition were a d j u d ic a te d on their merits in the state courts. As amended, 28 U.S.C. § 2254(d) now reads: (d) An application for a writ of habeas corpus on behalf of a person in c u sto d y pursuant to the judgment of a State court shall not be granted with resp ec t to any claim that was adjudicated on the merits in State court p ro c e e d in g s unless the adjudication of the claim(1 ) resulted in a decision that was contrary to, or involved a n unreasonable application of, clearly established Federal law, as d e te rm in e d by the Supreme Court of the United States; or (2 ) resulted in a decision that was based on an u n re a so n a b le determination of the facts in light of the evidence p re se n te d in the State court proceeding. 2 8 U.S.C.A. § 2254(d)(1)-(2) (West 2006). A decision is "contrary to" clearly established law if it fails to apply the correct c o n t r o llin g authority, or if it applied the controlling authority to a case involving facts m a te r ia lly indistinguishable from those in a controlling case, but nonetheless reaches a d if f ere n t result. See Williams v. Taylor, 529 U.S. 362, 413 (2000). A decision involves an " u n re a so n a b le application" of federal law if "the state court identifies the correct governing le g a l principle . . . but unreasonably applies that principle to the facts of the prisoner's case." Id.; Bruce v. Terhune, 376 F.3d 950, 953 (9th Cir. 2004). E v e n when the federal court undertakes an independent review of the record in the ab sen ce of a reasoned state court decision, the federal court must "still defer to the state court's u ltim a te decision." Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). If the state court d ec isio n does not furnish any analytical foundation, the review must focus on Supreme Court c a se s to determine "whether the state court's resolution of the case constituted an unreasonable - 12 07cv0002

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a p p lica tio n of clearly established federal law." Greene v. Lambert, 288 F.3d 1081, 1089 (9th C ir. 2001). Federal courts also look to Ninth Circuit law for persuasive authority in applying S u p r e m e Court law and to determine whether a particular state court decision is an " u n re a so n a b le application" of Supreme Court precedent. Davis v. Woodford, 384 F.3d 628, 6 3 8 (9th Cir. 2004). V. DISCUSSION F o r the reasons stated below, Petitioner does not warrant habeas relief on any of the c la im s in the Petition. A. C la im 1

P etitio n er alleges that the trial court erred in qualifying Officer Ryan Pear as an expert in the use of code words in prison to refer to controlled substances, and allowing him to "make in te rp re ta tio n s of words contained in the letters and phone calls of possible drug trafficking in an institutional setting," violating Petitioner's right to a fair trial under the Fifth and F o u rte e n th Amendments. (Petition at 6.) P e titio n e r raised this claim in his habeas petition filed in the California Supreme Court, w h i c h denied the claim without comment or citation to authority. (Lodgment No. 9.) Thus, th e Court must "look through" that opinion to the state appellate court's reasoned resolution o f the claim. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) ("The essence of unexplained o rd e rs is that they say nothing. We think that a presumption which gives them no effect- which s im p ly "looks through" them to the last reasoned decision- most nearly reflects the role they a re ordinarily intended to play.") (italics in original). The Court of Appeal held as follows: R o ya l asserts: "The trial court erred in finding Officer Pear qualified as an e x p e rt on the meaning of various words stated in [Royal's] telephone calls and le tte r s and in permitting him to state his opinion as to the meaning of those w o rd s ." It does not appear to us, however, that the court actually did either of th e s e things. T h e trial court ruled in limine that Officer Pear "would seem to have sufficient ex p ertise to be entitled to give an expert opinion in the meaning of the word `g irl' as used in these communications." This, by its terms, was only a p ro v is io n a l or interim ruling based on the prosecutor's representations as to what th e evidence would be, and on Pear's general statements about his training and e x p e rie n c e . (See, e.g., People v. Morris (1991) 53 Cal.3d 152, 187-191; 3 - 13 07cv0002

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W i tk i n , Cal. Evidence (4th ed. 2000) Presentation At Trial, §§ 368-370, pp. 4 5 5 -4 5 9 .) S o o n afterward, when Officer Pear was called to testify and acknowledged, a m o n g other things, that he had never encountered the word "girl" used by an in m ate to refer to illegal drugs, the court ruled only that he qualified as an expert " in the field of narcotics trafficking in a prison setting." This, plainly, was not th e same as a determination that Pear was an expert "on the meaning of various w o rd s stated in [Royal's] telephone calls and letters." Indeed, after Pear testified s e v e ra l different times, without an objection from the defense, about what he th o u g h t certain of Royal's words meant, the court, on its own initiative, advised th e parties outside the presence of the jurors: " ... An expert witness such as Mr. Pear is certainly qualified to give opinions as to the procedures and devices that are available to prison inmates to smuggle c o n tra b a n d .... [¶] He's qualified to give expert opinion as to how contraband is re f erre d to commonly by inmates. He's not qualified-it's not an appropriate area o f expert testimony for him to opine what the defendant meant by saying s o m e th in g . [¶] He's not a mind-reader and he's not in any better position than th e jury is to say what Mr. Royal meant." N e v e rth e les s, even though it was not Pear's experience that inmates commonly ref erred to contraband as "girl," the defense twice more failed to object to Pear's te stim o n y about what Royal meant when he used certain words. And when the d e f en se finally did object, the court sustained the objection. In short, we conclude Royal waived his objection to Officer Pear's testimony by f a il i n g to properly raise it before the trial court. (People v. Morris, supra, 53 C a l.3 d at pp. 189-190.) Moreover, while we agree with the trial court that the te s tim o n y was not admissible, we conclude Royal suffered no prejudice as a re su lt of his counsel's inaction. R o ya l's letters and phone calls, standing alone, establish only that he arranged f o r Danyell to bring him something in prison, Officer Pear's opinion n o tw ith s ta n d in g . This fact, however, together with Danyell's appearance at the p ris o n with 9 grams of cocaine secreted in her vagina, and Royal's subsequent le tte r to Crystal instructing her to say that "girl" meant money rather than drugs, le a v es no real doubt about what the something was to which Royal was re f e rrin g . (L o d g m e n t No. 4, People v. Royal, No. F045166, slip op. at 14-15.) R e sp o n d e n t contends that this claim is procedurally defaulted because trial counsel re p e a te d ly failed to object to Officer Pear's testimony on the meaning of terms such as "girl," " g re e n ," and "white" in Petitioner's letters and phone calls, and therefore waived the claim u n d e r California's contemporaneous objection rule. When a state court's rejection of a federal c la im involves a violation of a state procedural rule which is adequate to support the judgment a n d independent of federal law, a habeas petitioner has procedurally defaulted his claim. C o lem an v. Thompson, 501 U.S. 722, 729-30 (1991). A state procedural rule is adequate it

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h a s been "firmly established and regularly followed" by the state court. Ford v. Georgia, 498 U .S . 411, 424 (1991). The procedural rule is independent if it is not "interwoven with the f e d e ra l law." Michigan v. Long, 463 U.S. 1032, 1040-41 (1983). The Ninth Circuit has held that because procedural default is an affirmative defense, R e sp o n d e n t bears the burden of pleading and ultimately proving the existence of an adequate a n d independent procedural bar, with Petitioner bearing an interim burden of placing the ad eq u ac y of the defense at issue. See Bennett v. Mueller, 322 F.3d 573, 585 (9th Cir. 2003). H e re , Respondent has met his initial burden under Bennett by pleading that this claim is p ro c e d u ra lly defaulted under California's contemporaneous objection rule, which the Ninth C irc u it has held is independent and adequate. See Rich v. Calderon, 187 F.3d 1064, 1069-70 (9th Cir. 1999). T h e burden of placing the adequacy of the procedural bar in issue therefore shifts to the P e titio n e r and "[t]his must be done, at a minimum, by specific allegations by the petitioner as to the adequacy of the state procedure. The scope of the state's burden of proof thereafter will b e measured by the specific claims of inadequacy put forth by the petitioner." Bennett, 322 F .3 d at 584-85. Petitioner offers no challenge to the adequacy of the procedural bar, and thus f a ils to satisfy his interim burden under Bennett. The Court must therefore conclude the p ro c e d u ra l default in question rests on an adequate and independent state procedural ground, a n d "federal habeas review is barred unless the prisoner can demonstrate cause for the p ro c e d u ra l default and actual prejudice, or demonstrate that the failure to consider the claims w ill result in a fundamental miscarriage of justice." Noltie v. Peterson, 9 F.3d 802, 804-805 (9th Cir. 1993); Coleman, 501 U.S. at 750; Park v. California, 202 F.3d 1146, 1150 (9th Cir. 2 0 0 0 ). 1. C au se

A showing of cause requires Petitioner to demonstrate that "some objective factor e x te rn a l to the defense" obstructed his efforts to comply with the procedural rule, such as in te rf e re n c e by state officials or constitutionally ineffective counsel. McClesky v. Zant, 499 U .S . 467, 493-494 (1991). The Supreme Court states:

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A lth o u g h we have not identified with precision exactly what constitutes "cause" to excuse a procedural default, we have acknowledged that in certain c irc u m sta n c e s counsel's ineffectiveness in failing properly to preserve the claim f o r review in state court will suffice. [Murray v. Carrier, 477 U.S. 478, 488-89 (1 9 8 6 ).] Not just any deficiency in counsel's performance will do, however; the a ss is ta n c e must have been so ineffective as to violate the Federal Constitution. Ib id . In other words, ineffective assistance adequate to establish cause for the p ro c e d u ra l default of some other constitutional claim is itself an independent c o n stitu tio n a l claim. And we held in Carrier that the principles of comity and f e d era lis m that underlie our longstanding exhaustion doctrine--then as now c o d if ie d in the federal habeas statute, see 28 U.S.C. §§ 2254(b),(c)--require that c o n stitu tio n a l claim, like others, to be first raised in the state court. "(A) claim o f ineffective assistance," we said, generally must "be presented to the state co u rts as an independent claim before it may be used to establish cause for a p ro c e d u ra l default." Carrier, supra, at 489. Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000). P e titio n e r directs the Court to Claim Five of his petition, in which he alleges he was " d e n ie d effective assistance of counsel during trial when he [counsel] repeatedly failed to o b je c t to Officer Pear's testimony." (Traverse at 3.) In order to satisfy the cause prong, the in e f f e c tiv e assistance of counsel claim must have been itself raised as an independent claim in state court. In the instant case, Claim 5 was raised in a state habeas petition filed in the C a lif o rn ia Supreme Court, and was denied in an order that read in full: "Petition for writ of h a b e a s corpus is DENIED." (Lodgment No. 9.) H o w e v e r, as discussed below, even if Petitioner's assertion of ineffective assistance of c o u n se l could constitute sufficient cause for the procedural default, Petitioner is unable to d e m o n stra te requisite prejudice arising from the default. 2. P r e ju d i c e

T h e Supreme Court has held that if a petitioner is able to demonstrate cause for his d e f au lt, he must also show actual prejudice resulted from the errors he alleges. Zant, 499 U.S. a t 494. To establish the requisite prejudice to overcome a procedural default, a petitioner must e sta b lis h "not merely that the errors at his trial created a possibility of prejudice, but that they w o r k e d to his actual and substantial disadvantage, infecting his entire trial with error of c o n sti tu ti o n a l dimensions." United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in o rig in a l). The Ninth Circuit has held that "[p]rejudice is actual harm resulting from the alleged erro r." Vickers v. Stewart, 144 F.3d 613, 617 (9th Cir. 1998).

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In this instance, Petitioner has failed to establish prejudice arising from the procedural d e f a u lt because Claim 1 is without merit. Coleman, 501 U.S. at 750. On several occasions d u rin g direct examination, Officer Pear rendered his opinion on the meaning of words such as " g irl" in Petitioner's communications. On cross-examination, Pear conceded that because he d i d not actually know the contents of Petitioner's mind, he looked at the context of the c o m m u n ic a tio n s in forming his conclusion that Petitioner's "code words" referred to drugs. (L o d g m e n t No. 11 at 177.) However, apart from Pear's testimony, the prosecution presented s u b s ta n tia l evidence in support of the charges. The prosecution introduced the letters between P e titio n e r, Scott and others repeatedly requesting that Scott bring him something ("girl") on h e r next visit to prison. The jury was also apprised of letters Petitioner sent Scott in which he re p e ate d ly requested Scott make sure her prison visit was a "contact visit." Additionally, the re c o rd e d phone calls between Petitioner and Scott demonstrate that on several other occasions P e titio n e r reiterated his request that Scott to bring him "that" or "girl" on her next visit. Prison re c o rd s demonstrate that Scott arrived at Corcoran for a visit with Petitioner with cocaine s e c re te d on her person. The jury was also presented with a letter Petitioner sent Scott four m o n th s after the charges were filed, in which the Petitioner advised her that his attorney would c o n ta c t her, and stating that, "in Vegas, girl is known to be called money because girls make m o re money in Vegas. . .You don't know nothing about no drugs." As detailed above, there was sufficient evidence to support Petitioner's conviction aside f ro m Officer Pear's testimony on the possible meaning of the words "girl," among others, in P e titio n e r 's communications. The plain meaning of Petitioner's letters and phone calls re q u e stin g Scott bring him "girl" in her next visit, coupled with Scott's arrival at the prison w ith drugs on her person, and Petitioner's subsequent letter advising her of the meaning of the w o rd "girl," is sufficient evidence to overcome any potential harm resulting from Officer P e a r's testimony. Petitioner is unable to demonstrate prejudice sufficient to overcome the p ro c e d u ra l default because the claim is without merit. /// ///

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T h e only remaining exception to an otherwise procedurally barred claim requires a p e titio n e r to "demonstrate that the failure to consider the claims will result in a fundamental m is c a rria g e of justice." Noltie, 9 F.3d at 804-805; Coleman, 501 U.S. at 750. The Supreme C o u rt has strictly limited this exception to habeas petitioners who can show that "a c o n s titu tio n a l violation has probably resulted in the conviction of one who is actually in n o c e n t." Murray v. Carrier, 477 U.S. 478, 488 (1986). To avail himself of this exception, P e titio n e r must demonstrate factual innocence, that "it is more likely than not that no re a so n a b le juror would have convicted him," but for the error. Schlup v. Delo, 513 U.S. 298, 3 2 7 (1995). Petitioner fails to satisfy this standard. As set forth above, there is no reasonable lik elih o o d that the jury's decision was materially affected by the introduction of Officer Pear's in ter p re tatio n of the "code words" used in Petitioner's letters and phone calls. The plain m e a n in g of those words was clear, especially when coupled with Scott's actions and P e titio n e r's September 6, 2003 letter asserting that Scott "don't know nothing about no code w o rd s " and attempting to explain the real meaning of the word "girl" in his communications. In light of this evidence against Petitioner, the inclusion of the contested portions of Officer P e a r's testimony does not lead this Court to conclude in this case that "a constitutional v io la tio n has probably resulted in the conviction of one who is actually innocent." Schlup, 513 U .S . at 327; Wood v. Hall, 130 F.3d 373, 379 (9th Cir. 1997). Petitioner fails to demonstrate th a t the Court's failure to consider this claim on the merits will result in a fundamental m is c a rria g e of justice. Coleman, 501 U.S. at 750. Claim 1 is procedurally defaulted and P e titio n e r has not demonstrated cause or prejudice to overcome the default. Habeas relief is th e re f o re unavailable as to Claim 1. B. C la im 2

P e titio n e r asserts that the trial court erred in failing to sua sponte instruct the jury on the m e th o d by which to evaluate co-conspirator hearsay statements pursuant to CALJIC 6.24, w h ic h constituted "prejudicial error and requires federal habeas relief." (Pet. at 7.)

R e sp o n d e n t maintains that this Court does not have jurisdiction over this claim, as the state

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c o u rt's decision was based on an interpretation and application of state law. (Ans. at 20.) In the federal petition, Petitioner does not specifically cite the United States C o n s titu tio n or explicitly identify a federal violation. However, in his state habeas petition, P e t i t i o n e r asserted that the trial court's failure to instruct the jury pursuant to CALJIC 6.24 " v io late d petitioner's right to a fair trial under the Fifth and Fourteenth Amendment [sic] to th e United States Constitution." (Lodgment No. 8 at 6.) Therefore, the federal aspect of P e titio n e r's claim is exhausted. Moreover, the Court is required to construe this petition lib e r a lly. See Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) ("[I]n general, courts must c o n stru e pro se pleadings liberally."). Thus, the Court will construe Claim 2 as presenting a c la im identical to the claim presented in the state habeas petition, which alleged a violation of P e titio n e r's federal constitutional rights based on the trial court's failure to sua sponte instruct th e jury pursuant to CALJIC 6.24. Petitioner presented this claim to the California Supreme Court on state habeas review, w h ic h denied the claim without comment or citation of authority. (Lodgment No. 9.)

T h e re f o re , the Court must "look through" that opinion to the last reasoned opinion. See Ylst, 5 0 1 U.S. at 803. The California Court of Appeal denied this claim on appeal, ruling as f o llo w s: On the premise the statements of his alleged coconspirators-Danyell, Crystal, M a rle n a , and Demon-were admitted under the coconspirator exception to the h e a rs a y rule (Evid.Code, § 1223),F N 4 Royal maintains the trial court had a sua sp o n te duty to give the jury an instruction pursuant to CALJIC No. 6.24, which provides: F N 4 . Evidence Code section 1223 states: " E v id e n c e of a statement offered against a party is not made i n a d m is s ib le by the hearsay rule if: [¶] (a) The statement was m a d e by the declarant while participating in a conspiracy to c o m m it a crime or civil wrong and in furtherance of the objective o f that conspiracy; [¶] (b) The statement was made prior to or d u rin g the time that the party was participating in that conspiracy; a n d [¶] (c) The evidence is offered either after admission of e v id e n c e sufficient to sustain a finding of the facts specified in s u b d iv is io n s (a) and (b) or, in the court's discretion as to the order o f proof, subject to the admission of such evidence." "Evidence of a statement made by one alleged conspirator other th a n at this trial shall not be considered by you as against another a lle g e d conspirator unless you determine by a preponderance of th e evidence: - 19 07cv0002

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 " `N o w it must be apparent that when an agreement is not in writing parol e v id e n c e is admissible to prove its contents. And, when the agreement is in p a ro l, evidence of the conversations of the parties tending to disclose the a g re e m e n t made is evidence of the very fact to be proved and hence is evidence o f the res gestae. Hence, when the conspiracy charged in the indictment is an " a g re e m e n t" to do or not to do a certain act evidence of the conversations and - 20 07cv0002

" 1 . That from other independent evidence that at the time the s ta te m e n t was made a conspiracy to commit a crime existed; " 2 . That the statement was made while the person making the s ta te m e n t was participating in the conspiracy and the person a g a in s t whom it was offered was participating in the conspiracy b e f o re or during that time; and " 3 . That the statement was made in furtherance of the objective of th e conspiracy. " T h e word `statement' used in this instruction includes any oral o r written verbal expression or the nonverbal conduct of a person in te n d e d by that person as a substitute for oral or written verbal e x p re s s io n ." W h en the admission of evidence is dependent upon the existence of preliminary f a cts , the procedure for establishing those facts is set out in Evidence Code s e c t i o n s 400 through 405. (People v. Herrera (2000) 83 Cal.App.4th 46, 60 (H e rr e ra ).) Evidence Code section 403, subdivision (c) provides in part: "If the c o u rt admits the proffered evidence under this section, the court: [¶] (1) May, a n d on request shall, instruct the jury to determine whether the preliminary fact e x is ts and to disregard the proffered evidence unless the jury finds that the p re lim in a ry fact does exist." (Italics added.) CALJIC No. 6.24 is such an in s tru c tio n . Here, the defense made no request for the instruction, nor did it put th e prosecution to its proof of the preliminary facts necessary for admission of c o c o n sp ira to r hearsay. Nevertheless, even assuming the court had a sua sponte d u ty to so instruct, Royal suffered no prejudice as a result of his counsel's failure to request the instruction. " T h e gist of the offense [of conspiracy] is the unlawful agreement between the c o n sp ira to rs to commit an offense prohibited by statute, accompanied by an o v e rt act in pursuance thereof." (People v. Curtis (1951) 106 Cal.App.2d 321, 3 2 5 ; Herrera, supra, 83 Cal.App.4th at p. 64.) B e f o re the hearsay statements of a coconspirator may be admitted, the existence o f the conspiracy must be shown by proof independent of the statements. (E v id .C o d e , § 1223.) But, all that is required is prima facie evidence of the c o n s p ira c y. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1134.) "Evidence is s u f f ic ie n t to prove a conspiracy to commit a crime `if it supports an inference th a t the parties positively or tacitly came to a mutual understanding to commit a crime. [Citation.] The existence of a conspiracy may be inferred from the co n d u ct, relationship, interests, and activities of the alleged conspirators before a n d during the alleged conspiracy. [Citations.]' [Citation.]" (Id. at p. 1135.) T h e acts and declarations constituting the agreement itself are not hearsay and s o are admissible to show the prima facie existence of the conspiracy. (People v . Jourdain (1980) 111 Cal .App.3d 396, 405; People v. Curtis, supra, 106 C a l.A p p .2 d at p. 326.)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

a c ts of the conspirators which constitute the agreement is admissible to prove the a g re e m e n t....'" (People v. Curtis, supra, 106 Cal.App.2d at p. 326.) T h u s, the statements of Royal, Danyell, Crystal, and Demon to one another in th e letters and telephone calls, inasmuch as they were evidence of their a g re e m e n t to smuggle drugs into prison, were admissible to prove the conspiracy irre sp e c tiv e of section 1223 of the Evidence Code. This being so, for the reasons w e have already discussed, there is no reasonable possibility the jury would have re a ch e d a verdict more favorable to Royal if a CALJIC No. 6.24 instruction had b e e n given. (L o d g m e n t No. 4, People v. Royal, No. F045166, slip op. at 15-18.) T h e Supreme Court has held that a federal court may not generally grant federal habeas re lie f based on errors of state law. See Estelle v. McGuire, 502 U.S. 62 (1991) ("[I]t is not the p ro v in c e of a federal habeas court to reexamine state court determinations on state law q u e s tio n s ." ) . To merit federal habeas relief based on a state trial error, a petitioner must d e m o n s tra te that the error "so infected the entire trial that the resulting conviction violates due p ro c e s s ." Henderson v. Kibbe, 431 U.S. 145, 154 (1977), quoting Cupp v. Naughten, 414 U.S. 1 4 1 , 147 (1973). Additionally, when the trial court's failure to give an instruction is at issue, th e burden on a petitioner is "especially heavy." Kibbe, 431 U.S. at 154. Furthermore, even if the trial court erred, habeas relief is unavailable unless the error had a "substantial and in ju rio u s effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 627. A t trial, the prosecution introduced the letters and phone calls between Petitioner and h is alleged co-conspirators (Danyell, Crystal, and Damon Folks) pursuant to the hearsay rule. P e titio n e r asserts the trial court erred in failing to instruct the jury using CALJIC 6.24, which s ta te s that before considering the hearsay statements of a co-conspirator, the prosecution must e sta b lis h the existence of the conspiracy beyond a preponderance of the evidence. Respondent m a in t a in s that the failure to give the jury that specific instruction was not prejudicial because " th e re is no real doubt that Petitioner, Danyell, Crystal and Demon were conspiring to smuggle d ru g s into prison." (Ans. at 22.) /// /// ///

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It is clear that the application of CALJIC 6.24, concerning the admission of evidence w h ic h is dependent on the existence of preliminary facts, is governed by California Evidence c o d e section 403(c), which clearly states that the trial court, "[m]ay, and on request shall, in s tru c t the jury. . ." (Cal. Evid. Code 403(c)) (emphasis added). The California Supreme C o u rt's determination was reasonable in concluding that the trial court did not have a duty to in s tru c t the jury sua sponte under CALJIC 6.24. Moreover, the state court's determination was b a se d entirely on state law, and the trial court's failure to give this jury instruction, assuming it was erroneous, does not rise to the level of a federal constitutional error. Petitioner asserts, without any factual support, that the "out-of-court statements of the a lle g e d co-conspirators, their conduct, and activities did not establish a prima facie case of a c o n sp ira c y" and thus the state trial court's failure to instruct the jury with CALJIC 6.24 c o n stitu ted prejudicial error. (Pet. at 7.) The Court previously concluded that Petitioner's use o f language in his letters and communications, coupled with Scott's arrival at the prison with d ru g s , constituted evidence sufficient to overcome the possibility of prejudice as a result of the a lle g e d error (see Claim 1, supra), and this evidence is beyond the requisite measure of proof f o r a prima facie case. The introduction of his co-conspirator' statements without an

a c co m p a n yin g jury instruction did not result in prejudice, and Petitioner cannot overcome the " e sp e c ia lly heavy" burden to show that the trial court's failure to give this instruction denied h im due process. Kibbe, 431 U.S. at 154. This Court's review is properly limited to a d e te r m in a t io n whether the state court's decision was contrary to, or an unreasonable a p p lic a tio n of, clearly established federal law. Petitioner has failed to make such a showing b e c au s e his federal constitutional rights were not violated by the omission of this instruction, a n d because he suffered no "actual prejudice." Brecht, 507 U.S. at 637. This claim does not e n title Petitioner to habeas relief. C. C la im 3

P e titio n e r contends that the prosecutor committed misconduct in his questioning of O f f ice r Pear on inadmissible matters, violating Petitioner's right to a fair trial under the Fifth a n d Fourteenth Amendments. (Pet. at 8.) Petitioner also claims that the admission of certain

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in f o rm a tio n obtained from Pear's post-arrest conversation with Danyell Scott violated his C o n f ro n ta tio n Clause rights under the Sixth Amendment to the Constitution. (Id.) P e titio n e r presented this claim to the California Supreme Court on state habeas review, a n d that court denied the claim without a statement of reasoning or citation to authority. (L o d g m en t No. 9.) Petitioner did not raise this claim in any other state court. Because there is no lower court opinion addressing the merits of this claim, the Court is required to undertake a n independent review of the record, focusing "primarily on Supreme Court cases," in order to determine whether the silent denial of this claim by the California Supreme Court was c o n tra ry to, or an unreasonable application of, clearly established federal law. Lambert, 288 F .3 d at 1089. However, even when undertaking an independent review of the record, the f e d era l court "still defer[s] to the state court's ultimate decision." Pirtle, 313 F.3d at 1167. T o constitute a denial of Petitioner's right to due process, "the prosecutorial misconduct m u st be `of sufficient significance to result in the denial of the defendant's right to a fair tria l.'" Greer v. Miller, 483 U.S. 756, 765 (1987), quoting United States v. Bagley, 473 U.S. 6 6 7 , 676 (1985). The reviewing court must determine whether the prosecutor's misconduct s e rv e d to "so infect the trial with unfairness as to make the resulting conviction a denial of due p ro c e s s ." Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). Pursuant to constitutional rig h ts guaranteed by the Confrontation Clause of the Sixth Amendment, the Supreme Court h a s held that "[t]estimonial statements of witnesses absent from trial have been admitted only w h e re the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." Crawford v. Washington, 541 U.S. 36, 59 (2004). Petitioner alleges that even after the trial court held Scott's statements to Officer Pear w e re inadmissible, the prosecution elicited testimony from Pear that came directly from his p o s t-a rre st interview with Danyell Scott. Petitioner points to two instances where Officer P e a r's testimony resulted from information received in his contact with Scott, including: 1) the m e a n in g of the word "girl" as Scott understood it, and 2) the fact that Scott and Petitioner did n o t have children together. ///

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D u rin g a conference outside the presence of the jury, and upon a motion by the defense, th e trial court ruled that while Scott's comments were relevant, any probative value was o u tw e ig h e d by the prejudicial effect of introducing the out of court statements without the d e f en s e having a chance to cross-examine Scott. The prosecutor acknowledged the trial c o u rt's ruling, stating that Pear would not "testify as to any of Miss Scott's statements, but ce rtain ly his expert opinion, I can't see how it would not be based on her statements. I don