Perez v. Bitter
Filing
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FINDINGS and RECOMMENDATIONS to Dismiss in Part and Deny in Part the Second Amended Petition for Writ of Habeas Corpus (Doc. 22 ), Deny 37 Petitioner's Motions to Expand the Record and for an Evidentiary Hearing, to Enter Judgment for Respondent and to Decline to Issue a Certificate of Appealability signed by Magistrate Judge Sheila K. Oberto on 5/22/2014. Referred to Judge O'Neill. Objections to F&R due within thirty (30) days. (Jessen, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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11 CESAR MELGOZA PEREZ,
Case No. 1:11-cv-01766-LJO-SKO-HC
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FINDINGS AND RECOMMENDATIONS TO
DIMISS IN PART AND DENY IN PART THE
SECOND AMENDED PETITION FOR WRIT OF
HABEAS CORPUS (DOC. 22) AND DENY
PETITIONER’S MOTIONS TO EXPAND THE
RECORD AND FOR AN EVIDENTIARY
HEARING (DOC. 37)
Petitioner,
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v.
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MARTIN BITER, Warden, et al.,
Respondents.
OBJECTIONS DEADLINE:
THIRTY (30) DAYS
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FINDINGS AND RECOMMENDATIONS TO
ENTER JUDGMENT FOR RESPONDENT AND
TO DECLINE TO ISSUE A CERTIFICATE
OF APPEALABILITY
Petitioner is a state prisoner proceeding pro se and in forma
pauperis with a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254.
The matter has been referred to the Magistrate Judge
pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 through 304.
Pending before the Court is the second amended petition (SAP), which
was filed on June 20, 2012, and associated motions concerning
expansion of the record and an evidentiary hearing filed by
Petitioner on December 10, 2012.
Respondent filed an answer to the
petition on September 20, 2012, and opposition to Petitioner’s
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1 motions on December 31, 2012.
Petitioner filed a traverse to the
2 answer on December 14, 2012, but did not file a reply to the
3 opposition to the motions.
On February 14, 2013, the Court deferred
4 consideration of the motions until the Court considered the merits
5 of the petition.
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I.
Jurisdiction
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Because the petition was filed after April 24, 1996, the
8 effective date of the Antiterrorism and Effective Death Penalty Act
9 of 1996 (AEDPA), the AEDPA applies in this proceeding.
Lindh v.
10 Murphy, 521 U.S. 320, 327 (1997); Furman v. Wood, 190 F.3d 1002,
11 1004 (9th Cir. 1999).
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The challenged judgment was rendered by the Stanislaus County
13 Superior Court (SCSC), which is located within the territorial
14 jurisdiction of this Court.
15 (d).
28 U.S.C. §§ 84(b), 2254(a), 2241(a),
Petitioner claims that in the course of the proceedings
16 resulting in his conviction, he suffered violations of his
17 constitutional rights.
Accordingly, the Court has subject matter
18 jurisdiction over this action pursuant to 28 U.S.C. §§ 2254(a) and
19 2241(c)(3), which authorize a district court to entertain a petition
20 for a writ of habeas corpus by a person in custody pursuant to the
21 judgment of a state court only on the ground that the custody is in
22 violation of the Constitution, laws, or treaties of the United
23 States.
Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v.
24 Corcoran, 562 U.S. B, -, 131 S.Ct. 13, 16 (2010) (per curiam).
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An answer was filed on behalf of Respondent Martin Biter, who,
26 pursuant to the judgment, has custody of Petitioner at his
27 institution of confinement.
(Doc. 28, 12.)
Petitioner has named as
28 a respondent a person who has custody of Petitioner within the
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1 meaning of 28 U.S.C. § 2242 and Rule 2(a) of the Rules Governing
2 Section 2254 Cases in the District Courts (Habeas Rules).
See,
3 Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir.
4 1994).
Accordingly, the Court has jurisdiction over the person of
5 the Respondent.
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II.
Procedural Summary
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The evidence introduced at trial showed that on July 10, 2004,
8 Petitioner fatally shot Ruben Sanchez Neuman.
Petitioner was a
9 member of the South Side Treces (SST), which is a set of the Surenos
10 street gang.
Neuman was a member of the Nortenos street gang.
11 Petitioner fled to Mexico, but a few years later he was apprehended
12 and returned to the United States.
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On March 11, 2009, a jury in the SCSC found Petitioner guilty
14 of the first-degree murder of Neuman in violation of Cal. Pen. Code
15 § 187(a), and assault of Neuman by means of force likely to produce
16 great bodily injury in violation of Cal. Pen. Code § 245(a)(1).
The
17 jury further found that the murder was premeditated and deliberate;
18 Petitioner committed the murder and assault for the benefit of a
19 criminal street gang within the meaning of Cal. Pen. Code
20 § 186.22(b)(1)); in the course of the murder, Petitioner personally
21 discharged a firearm and proximately caused Neuman’s death within
22 the meaning of Cal. Pen. Code § 12022.53(d) and (e)(1); and
23 Petitioner was armed with a firearm during the assault within the
24 meaning of Cal. Pen. Code § 12022(a).
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(2 CT 548-51.)
On May 22, 2009, Petitioner was sentenced to fifty years to
26 life in prison for the murder, plus a determinate term of eight
27 years to be served first for the assault. (3 CT 608-13.)
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On direct appeal, the Court of Appeal of the State of
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1 California, Fifth Appellate District (CCA) affirmed the judgment but
2 modified it to stay Petitioner’s sentence for the assault, thus
3 reducing his overall sentence to fifty years to life.
(LD 8 at 33-
4 37, 39; LD 9 [Order Modifying Opinion [No Change in Judgment]].)
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Petitioner filed a petition for review in the California
6 Supreme Court (CSC), and on April 13, 2011, the CSC denied review as
7 follows:
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The petition for review is denied without prejudice
to any relief which defendant might be entitled after
this court decides People v. Dungo, S176886, People
v. Gutierrez, S176620, People v. Lopez, S177046, and/or
People v. Rutterschmidt, S176213.
(LD 11, LD 10.)
On October 24, 2011, Petitioner filed his original petition in
this case and a motion for a stay and for abeyance of the
proceedings.
(Doc. 1, doc. 2.)
On November 14, 2011, the
Magistrate Judge recommended that Petitioner’s state law claims be
dismissed without leave to amend.
(Doc. 10.)
On the same day, Petitioner filed a habeas corpus petition in
the CSC.
(LD 12.)
On December 12, 2011, the District Judge adopted the Magistrate
Judge’s findings and recommendations, dismissed the state law claims
without leave to amend, and referred the matter back to the
Magistrate Judge, who denied Petitioner’s motion for stay and
abeyance on January 4, 2012.
(Doc. 14.)
Petitioner was given leave
to withdraw unexhausted claims and seek a Kelly stay. (Id.)
On
January 13, 2012, Petitioner filed a first amended petition and
moved to withdraw his unexhausted claims and hold the petition in
abeyance pursuant to a Kelly stay.
(Doc. 16, doc. 17.)
On March
29, 2012, the Magistrate Judge granted the motion for a stay and
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1 abeyance.
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(Doc. 18.)
On April 11, 2012, the CSC denied Petitioner’s habeas petition
3 without a statement of reasoning or citation of any authority.
(LD
4 13.)
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On May 2, 2012, Petitioner lodged in this proceeding his SAP.
6 (Doc. 20.)
On June 20, 2012 the court dissolved the stay and
7 ordered that the SAP be filed.
(Doc. 21, doc. 22.)
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III.
Factual Summary
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In a habeas proceeding brought by a person in custody pursuant
10 to a judgment of a state court, a determination of a factual issue
11 made by a state court shall be presumed to be correct; the
12 petitioner has the burden of producing clear and convincing evidence
13 to rebut the presumption of correctness.
28 U.S.C. § 2254(e)(1);
14 Sanders v. Lamarque, 357 F.3d 943, 947-48 (9th Cir. 2004).
This
15 presumption applies to a statement of facts drawn from a state
16 appellate court’s decision.
17 (9th Cir. 2009).
Moses v. Payne, 555 F.3d 742, 746 n.1
The following statement of facts is taken from
18 the opinion of the CCA in People v. Cesar Melgoza Perez, case number
19 F058027, filed on January 6, 2011 (LD 8):
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FACTS
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I. Neuman's Murder on July 10, 2004.
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On the evening of July 10, 2004, a party was held in
Modesto. The attendees included appellant, Luis Avina
Meza, Sergio Felix, Raul Pena, Jose Ochoa, Alvaro
Arellano, Rogelio Garcia and Francisco Gomez.FN2 All of
them except Meza were active Surenos gang members; Meza
associated with Surenos gang members.
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FN2. Meza, Felix, Pena and Ochoa entered into
plea bargains which obligated them to testify
truthfully in this case.
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Appellant brought a gun to the party. He had short hair
and wore a black shirt.
Appellant argued with a man at the party. The owner of the
house asked appellant to leave.
Ochoa remained at the party, but the rest of the group
decided to go to another party in the City of Newman. They
left in a pickup truck and a Jeep. Gomez drove the truck,
with Meza as a passenger. Pena drove the Jeep; appellant,
Felix, Arellano, and Garcia were passengers. Pena's
girlfriend, Teresa Marlen Vizcarra, accompanied the group.
She rode in the Jeep.
On the way, both vehicles stopped. Pena, Gomez and
appellant walked into an orchard. Pena saw appellant put
something into the top of his pants. Pena asked appellant
if he had a gun. Appellant replied affirmatively. Since
Pena was on probation, he told appellant to ride in the
truck. Appellant rode in the truck the rest of the way to
Newman.
When the group reached Newman, both vehicles stopped at a
liquor store. Pena went inside to buy some beer. When Pena
exited the liquor store, Gomez told him that “a northerner
guy went by” and “they said verbally words to each other.”
Around 10:00 p.m., the group left the liquor store. Meza
was driving the truck with Gomez and appellant as
passengers. The rest of the group was in the Jeep, which
was driven by Pena. The Jeep followed the truck.
About two blocks away from the liquor store, Neuman was
walking with his bicycle through an intersection. Neuman
wore red pants.FN3 He was carrying a paper bag containing
some beer.
FN3. Nortenos are associated with the color red
and wear red clothing. Surenos are associated
with the color blue and wear blue clothing.
Appellant told Meza to stop the truck. Meza stopped the
truck in the middle of the street.
Appellant got out of the truck, ran up to Neuman and
verbally confronted him. They argued and then exchanged
punches.
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Meza and Gomez got out of the truck and moved towards
appellant and Neuman.
Pena stopped his Jeep in the middle of the intersection.
Pena backed up the Jeep, accidentally hitting appellant
and Neuman. The back window of the Jeep shattered.
Appellant and Neuman fell to the ground. They both got up.
Appellant angrily yelled at Pena.
Felix, Garcia and Arellano got out of the Jeep. Pena and
his girlfriend stayed in the Jeep.
Neuman had beer in the brown paper bag. He threw a beer at
Gomez, but it did not hit him.
Appellant asked Gomez if “he was going to get away with
that.” Gomez said that “he needs some backup.” Meza walked
towards Gomez.
Appellant punched Neuman in the chest and Neuman fell to
the ground. Meza, Gomez, Felix, Arellano, Garcia and
appellant stood in a semi-circle around Neuman, punching
and kicking him.
A woman came out of a nearby house and screamed. Meza
testified, “So that's when everybody started running back
to the cars.” Meza also said, “So the only one who stayed
was [appellant].” Meza testified that he turned around and
saw appellant pull out a gun from the waistband of his
pants. He pointed the gun down at Neuman, who was lying on
the ground. Meza testified appellant fired four or five
shots at Neuman.
Felix testified that the group was still punching and
kicking Neuman when appellant suddenly had a gun in his
hand. Appellant started firing the gun at Neuman. Felix
thought that appellant fired more than four or five shots.
Felix testified that when appellant started shooting, he,
Arellano and Garcia ran back to the Jeep. When Felix got
into the Jeep, shots were still being fired.
Pena testified that he saw Arellano, Felix and Garcia
getting back into the Jeep. At the same time, Pena saw
five or six gun flashes. Then he saw appellant pointing a
gun at the ground.
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Meza got into the driver's seat of the truck, and Gomez
got into the passenger's seat. Meza began to drive away.
Appellant ran after the truck. He yelled for them to stop
and wait for him. Meza stopped the truck. Appellant jumped
into the back of the truck's bed. The truck sped away. The
rest of the group, including Arellano, left in the Jeep.
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A person approached Neuman and comforted him.
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A police officer arrived about 10:40 p.m. The officer saw
what appeared to be bullet wounds on Neuman's torso.
Neuman died before he could be transported to the
hospital.
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Numerous bystanders and neighbors heard or saw some or all
of the events culminating in Neuman's murder.FN4 A police
officer testified that someone told him that he/she
witnessed Neuman's murder. This person told the police
officer that during the fight, one person started shooting
down at the ground. This person heard four shots. This
person described the shooter as a male who was about five
feet 10 inches tall and weighed approximately 130 to 140
pounds. This person said the shooter wore a black shirt
and had short hair. This person thought the shooter got
into a Jeep. The Jeep drove away. Then this person saw two
people run behind a pickup truck. The truck slowed and the
two people got into the bed of the truck and the truck
drove away.
FN4. Appellant has not challenged the
sufficiency of the evidence and we have not
discerned any error requiring us to assess the
strength of the evidence supporting the guilty
verdicts. Therefore, it is not necessary to set
forth everyone's statements to police officers
and/or trial testimony. Since the murder and
assault were gang-related, these people will not
be named unless this information is necessary to
resolve an appellate issue.
A bystander testified that he/she was inside his/her
house. He/she heard a crash and then heard three or four
gunshots. He/she went out to the front porch. He/she saw a
man chasing after a pickup truck. The truck slowed and the
man climbed into the truck's bed. The man appeared to be
“fairly young” and his height and weight was characterized
as “medium.” In response to a question whether the man was
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bald, this person responded, “Yes. I didn't see any hair.
It was like a silhouette. I didn't see any hair.”
Meza drove the truck to his house. During the drive,
appellant opened the window separating the truck's cabin
from the bed. Appellant said that he had killed the man.
Meza and Gomez were upset. They asked appellant why he
killed the man. Appellant said the man had a gun. Meza and
Gomez disagreed, telling appellant that the man did not
have a gun. Then appellant “said he's one man less for
them.”
On the morning after the shooting, Pena told Ochoa that
the back window of the Jeep was broken because “they
jumped some guy” when they got to Newman. Pena said that
he and his girlfriend stayed in the Jeep, and “[p]retty
much everybody [else] jumped the guy.” Pena told Ocha that
he was backing up the Jeep to get everyone back in the
vehicle. The rear of the Jeep accidentally hit appellant
“and that guy they were jumping.” Then Arellano “got in it
and started kicking the guy. That's when [appellant]
pulled out a gun and shot the guy.”
II. Drive-by Shooting on July 12, 2004.
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On the night of July 11, 2004, Jose Cruz was murdered
during a drive-by shooting, which was possibly committed
by Nortenos.
On the evening of July 12, 2004, two Honda Accords were
reported stolen. It was stipulated that Pena stole one of
the Hondas.
About 10:00 p.m., two Hondas matching the description of
the stolen vehicles were used in a retaliatory drive-by
shooting targeting Nortenos. Several prosecution witnesses
were involved in this drive-by shooting.FN5
FN5. Appellant was not charged in this case with
any crime arising from the vehicular thefts or
the July 12 drive-by shooting.
After this drive-by shooting, police officers searched a
residence. Ochoa, Arellano and some other people were
hiding in the garage. Pena was arrested nearby.
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Three guns had been secreted under the steps of the
residence's back porch. One of the guns was a black semiautomatic .380–caliber Beretta handgun. The Beretta was
loaded with an empty magazine; another empty magazine was
found lying next to the Beretta. On the east side of the
house, police officers found some ammunition, including
some .380–caliber rounds.
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Gunshot residue tests were performed on Pena, Gomez, Ochoa
and Manuel Mendez after they were arrested in connection
with the July 12, 2004, drive-by shooting. Gunshot residue
particles were detected on Arellano's, Gomez's and Ochoa's
hands. No particles were detected on Pena's hands.
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III. Police Interviews.
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During a police interview, Vizcarra “said that when they
were all around the victim, kicking him and stomping him,
she saw [appellant] remove a gun and point the gun down.”
She turned her head away and heard three or more gunshots.
During police interviews, Pena and Felix identified
appellant as the shooter. They both said appellant got
into the pickup truck.
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A sheriff's deputy interviewed Arellano. Arellano told him
that he wore a black shirt on the night Neuman was killed.
Arellano said that when they got to Newman, appellant and
Gomez argued with a man on a bicycle because the man threw
something towards the truck. The man was a Norteno.
Arellano said he and Felix got out of the Jeep. Arellano
admitted that he was part of the group that kicked Neuman.
Arellano said “he was already getting back to the Jeep and
inside the Jeep when he heard those shots.” Arellano said
he looked back and saw muzzle flashes. Gomez and appellant
were standing by Neuman at that time. Arellano denied
knowing who shot Neuman. Arellano said that he was not the
shooter.
During a police interview, Ochoa related a conversation he
had with Pena after Neuman's death. Pena told Ochoa that
he and all his friends were Surenos. “They just saw a
Norteno riding a bike,” so everyone except Pena and his
girlfriend “went over there and started jumping him. And
while they were jumping him, [appellant] pulled out a gun
and just shot him.” Ochoa said he asked Pena why appellant
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shot the guy and Pena replied, “because, you know, he was
wearing red.”
In a police interview, Meza admitted participating in the
attack on Neuman. Meza said that they had kicked and
punched Neuman for over a minute when a woman yelled at
them to “knock it off.” At that point, they started
returning to their vehicles. Meza said he was walking
towards the truck with Gomez when appellant pulled out a
handgun, pointed it in a downward motion and started
firing. At that point, they all started running to the
vehicles. Meza heard five or six shots. Meza said the
attack on Neuman was unprovoked and occurred solely
because of Neuman's Norteno gang affiliation.
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IV. Appellant's Flight to Mexico.
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On July 13, 2004, appellant went to the probation
department for an unscheduled visit. He saw his probation
officer and requested permission to accompany his mother
to visit an aunt in Arizona. The probation officer granted
appellant permission to go to Arizona until August 6,
2004. Appellant never contacted his probation officer
again.
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On July 14, 2004, police officers unsuccessfully attempted
to locate appellant at his mother's house in Modesto and
at his father's house in Salinas.
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A bench warrant was issued on July 15, 2004.
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On July 20, 2004, appellant's mother told appellant's
probation officer that she did not know where appellant
was.
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In 2006, appellant was located in Mexico. He was living
under a different name. He was arrested by federal agents.
Several months later, he was returned to California in
custody.
V. Physical Evidence and Autopsy Results.
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A bicycle, a brown paper bag containing broken glass from
a beer bottle, vehicle window glass, pieces of a beer
bottle and some beer cans were found on the ground around
the intersection where Neuman died.
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Blood stains were found on the sidewalk. Four bullet
impact marks were found to the left of the blood stain.
Some .380–caliber cartridge casings and bullet slugs were
found in the area of the crime scene. It was subsequently
determined that the locations of the casings and bullet
impact marks indicated the shooter stood upright and fired
the gun downward.
Neuman's shirt had seven bullet holes that “were all close
to each other almost like in a half circle as well.” There
was a shoe imprint on the back of the shirt. A fragment of
a bullet was found in Neuman's shirt.
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A fully jacketed medium-caliber bullet was retrieved from
Neuman's body. It was determined that this bullet was
fired by the Baretta.
It was stipulated that the Baretta was used in Neuman's
killing and used to return fire at the car committing the
drive-by shooting that killed Jose Cruz.
It was also stipulated that a usable latent fingerprint
was developed from the Baretta. Appellant was not the
source of this fingerprint.
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An autopsy was performed. Neuman's cause of death was
shock and hemorrhage due to multiple gunshot wounds.
Neuman suffered seven gunshot wounds. Five bullets entered
the right side of Newman's back. These five gunshots were
grouped together in a diameter of 12 to 15 inches. Both
lungs, the liver, stomach, right adrenal gland, spinal
column, diaphragm and aorta were perforated. Other bullets
caused a grazing wound to Neuman's abdomen and entered his
upper right arm. Neuman also suffered blunt force injuries
that were consistent with a fight.
The gunshot wounds to Neuman's back and arm were similar
looking and had a similar direction on the body,
indicating the shots occurred in rapid succession. The
shooter was standing on the right side of Neuman, and
Neuman had his back or right side to the shooter when at
least six of the shots were fired. The angles of the
wounds were consistent with the shooter being above the
victim or the victim being angled towards the shooter and
the victim falling toward the shooter after being struck
by the first three bullets. All of the shots were fired
from a distance exceeding 18 inches.
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VI. Gang Testimony.
Froilan Mariscal gave expert gang testimony. After
explaining the origins of the Surenos and [Nortenos]
gangs, he identified the SST as a set of the Surenos gang.
Mariscal opined that the Nortenos and Surenos are criminal
street gangs. He testified about predicate offenses.
Mariscal opined that appellant was an active Surenos gang
member on the date of Neuman's murder. Mariscal also
opined that the assault and murder of Neuman were
committed to benefit a criminal street gang.
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VII. Appellant's Defense Theory: Arellano Shot Neuman.
The defense called Daniel Britt. Britt testified that he
met Felix while they were housed in the gang drop-out unit
at Corcoran State Prison. Britt testified that Felix told
him Arellano shot Neuman. Felix also said “that they had
busted some 15–year–old youngster. He was in Mexico. But
the Surenos said he was supposed to take the rap because
he was the youngest one and would get less time.” Britt
admitted that defense counsel and the defense investigator
were the first people he told about these statements.
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Britt also testified that in 2006, a Sureno gang member
fatally shot Michael Arreola, who was a Norteno gang
member. Britt identified a photograph of Arellano as the
shooter. However, Britt later shared a jail cell with
Arellano and was no longer certain that Arellano shot
Arreola.
Felix testified that Britt approached him in the prison
yard and harassed him with questions about Neuman's
murder. Felix said he falsely told Britt that Arellano
shot Neuman so Britt would stop bothering him.
(LD 8, 2-11.)
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IV.
Introduction of Accomplice Testimony
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Petitioner argues he suffered a violation of his Fifth and
26 Fourteenth Amendment rights to due process of law and a
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fundamentally fair trial by the introduction of the testimony of the
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1 four accomplices because the testimony was coerced by the
2 accomplices’ plea agreements, which required truthful testimony and
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represented that the accomplices’ prior statements to law
enforcement agents were true.
A.
Standard of Decision and Scope of Review
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Title 28 U.S.C. § 2254 provides in pertinent part:
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(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
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judgment of a State court shall not be granted
with respect to any claim that was adjudicated
on the merits in State court proceedings unless
the adjudication of the claim–
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(1) resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light
of the evidence presented in the State court
proceeding.
Clearly established federal law refers to the holdings, as
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opposed to the dicta, of the decisions of the Supreme Court as of
21 the time of the relevant state court decision.
Cullen v.
22 Pinholster, - U.S. -, 131 S.Ct. 1388, 1399 (2011); Lockyer v.
23 Andrade, 538 U.S. 63, 71 (2003); Williams v. Taylor, 529 U.S. 362,
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412 (2000).
A state court’s decision contravenes clearly established
Supreme Court precedent if it reaches a legal conclusion opposite
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1 concludes differently on a materially indistinguishable set of
2 facts.
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Williams v. Taylor, 529 U.S. at 405-06.
The state court
need not have cited Supreme Court precedent or have been aware of
it, "so long as neither the reasoning nor the result of the statecourt decision contradicts [it]."
7 (2002).
Early v. Packer, 537 U.S. 3, 8
A state court unreasonably applies clearly established
8 federal law if it either 1) correctly identifies the governing rule
9 but applies it to a new set of facts in an objectively unreasonable
10
11
12
13
manner, or 2) extends or fails to extend a clearly established legal
principle to a new context in an objectively unreasonable manner.
Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir. 2002); see,
14 Williams, 529 U.S. at 407.
An application of clearly established
15 federal law is unreasonable only if it is objectively unreasonable;
16 an incorrect or inaccurate application is not necessarily
17
unreasonable. Williams, 529 U.S. at 410. A state court’s
18
determination that a claim lacks merit precludes federal habeas
19
20 relief as long as it is possible that fairminded jurists could
21 disagree on the correctness of the state court’s decision.
22 Harrington v. Richter, 562 U.S. -, 131 S.Ct. 770, 786 (2011).
23
24
25
26
Even
a strong case for relief does not render the state court’s
conclusions unreasonable.
Id.
To obtain federal habeas relief, a
state prisoner must show that the state court’s ruling on a claim
27 was “so lacking in justification that there was an error well
28 understood and comprehended in existing law beyond any possibility
15
1 for fairminded disagreement.”
Id. at 786-87.
The standards set by
2 § 2254(d) are “highly deferential standard[s] for evaluating state3
4
5
6
court rulings” which require that state court decisions be given the
benefit of the doubt, and the Petitioner bear the burden of proof.
Cullen v. Pinholster, 131 S.Ct. at 1398.
Habeas relief is not
7 appropriate unless each ground supporting the state court decision
8 is examined and found to be unreasonable under the AEDPA.
Wetzel v.
9 Lambert, -–U.S.--, 132 S.Ct. 1195, 1199 (2012).
10
11
12
13
In assessing under section 2254(d)(1) whether the state court’s
legal conclusion was contrary to or an unreasonable application of
federal law, “review... is limited to the record that was before the
14 state court that adjudicated the claim on the merits.”
15 Pinholster, 131 S.Ct. at 1398.
Cullen v.
Evidence introduced in federal court
16 has no bearing on review pursuant to § 2254(d)(1). Id. at 1400.
17
Further, 28 U.S.C. § 2254(e)(1) provides that in a habeas proceeding
18
brought by a person in custody pursuant to a judgment of a state
19
20 court, a determination of a factual issue made by a state court
21 shall be presumed to be correct; the petitioner has the burden of
22 producing clear and convincing evidence to rebut the presumption of
23
24
25
26
correctness.
A state court decision on the merits based on a
factual determination will not be overturned on factual grounds
unless it was objectively unreasonable in light of the evidence
27 presented in the state proceedings.
28 322, 340 (2003).
16
Miller-El v. Cockrell, 537 U.S.
1
With respect to each claim, the last reasoned decision must be
2 identified in order to analyze the state court decision pursuant to
3
4
5
6
7
8
28 U.S.C. § 2254(d)(1).
Barker v. Fleming, 423 F.3d 1085, 1092 n.3
(9th Cir. 2005); Bailey v. Rae, 339 F.3d 1107, 1112-13 (9th Cir.
2003).
B.
The State Court Decision
The CCA’s decision on the merits of the coercion claim was
9 followed by the CSC’s summary denial of a petition for review.
10
11
12
13
Where there has been one reasoned state judgment rejecting a federal
claim, later unexplained orders upholding that judgment or rejecting
the same claim are presumed to rest upon the same ground.
14 Nunnemaker, 501 U.S. 797, 803 (1991).
Ylst v.
This Court will thus “look
15 through” the unexplained decision of the CSC to the CCA’s last
16 reasoned decision as the relevant state court determination. Id. at
17
803-04; Taylor v. Maddox, 366 F.3d 992, 998 n.5 (9th Cir. 2004).
18
The CCA addressed the issue of coerced testimony by first
19
20 reviewing the pertinent facts as follows:
21
22
23
24
25
26
27
A. The Court Did Not Err by Admitting the Accomplices'
Testimony.
The district attorney entered into written plea agreements
with Pena, Felix, Meza and Ochoa and they testified as
prosecution witnesses. Appellant contends the plea
agreements were coercive and the trial court erred by
refusing to exclude these witnesses. As will be explained,
the plea agreements were not coercive. Admission of the
contested testimony was proper and did not infringe
appellant's constitutional rights to a fair trial and due
process of law.
28
17
1
2
3
4
5
6
7
8
9
10
11
12
13
14
1. Facts.
All four plea agreements provided, “It is my understanding
that you wish to testify regarding the following: your
personal knowledge and observations regarding the events
and persons responsible for these crimes, and all other
matters about which you know regarding these crimes.”
Then the plea agreements of Felix and Meza stated, “You
have given a statement to [specified detective or
investigator] on [specified date], which [you] have
represented to be truthful.” Pena's plea agreement stated,
“You have given a statement to [specified police
officers], which [you] have represented to be truthful.”
This section of Ochoa's plea agreement was worded slightly
differently. It provided, “You have given a statement to
[specified police officers], in which you answered
questions and provided information about the murder and
the drive-by shooting, and have represented to be
truthful.”
Next, all four of the plea agreements essentially provided
the witness agreed to testify truthfully to any and all
hearings, trials and retrials on these matters.
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Then all four plea agreements provided that if all of the
following obligations were fulfilled, the person would
receive a specified benefit from the district attorney.
These obligations included the following: (1) testify
truthfully at all hearings, trial, or retrials; (2) attend
all necessary court appearances; and (3) stay available to
law enforcement.
Next, each plea agreement set forth the benefit provided
by the district attorney. The benefit differed for each
individual.
Then each plea agreement stated it would be null and void
if the enumerated conditions were not fulfilled or if it
was discovered that the witness testified falsely.
Further, the witness would be subject to prosecution for
perjury.
At trial, defense counsel argued the plea agreements were
coercive because they violated the Medina rule by
essentially requiring Pena, Felix, Meza and Ochoa to
testify consistently with their prior statements. (People
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4
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7
8
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28
v. Medina (1974) 41 Cal.App.3d 438, 116 Cal.Rptr. 133
(Medina).) The court overruled this objection.
2. The Medina rule.
A plea agreement requiring only that the witness testify
fully and truthfully is valid. But a plea agreement that
expressly requires the witness to conform to an
established script or one that is conditioned on a
particular result is unfairly coercive. Admission of
testimony that is the product of a coercive plea agreement
infringes the defendant's federal constitutional fair
trial right. (People v. Jenkins (2000) 22 Cal.4th 900,
1010, 95 Cal.Rptr.2d 377, 997 P.2d 1044 (Jenkins); Medina,
supra, 41 Cal.App.3d at pp. 449–456, 116 Cal.Rptr. 133;
People v. Green (1951) 102 Cal.App.2d 831, 838–839, 228
P.2d 867.) This principle is known as the Medina rule.
(See, e.g., People v. Fields (1983) 35 Cal.3d 329, 360,
197 Cal.Rptr. 803, 673 P.2d 680 (Fields).)
In Medina, three witnesses testified under a grant of
immunity subject to the condition that the witness did not
materially or substantially change her testimony from the
tape-recorded statement she gave to law enforcement
officers. The appellate court acknowledged that a grant of
immunity could be conditioned on a requirement that the
witness testify fully and fairly to the facts, but held
that when the terms of the immunity place the witness
under a strong compulsion to testify in a particular
fashion, the testimony is tainted and inadmissible.
(Medina, supra, 41 Cal.App.3d at p. 456, 116 Cal.Rptr.
133.)
In several cases, our Supreme Court has assessed plea
agreements and determined that they were not coercive. In
the process, it has impliedly determined that the Medina
rule be restrictively interpreted. (See, e.g., People v.
Reyes (2008) 165 Cal.App.4th 426, 434, 80 Cal.Rptr.3d 619
(Reyes).)
(LD 8, 11-13.)
The state court then reviewed the state cases in which the CSC
had held that plea agreements in various sets of circumstances were
not coercive, including 1) where a witness agreed to testify
according to a statement she had given at a specified time, which
19
1 she confirmed was truthful, where the witness understood that if she
2 told a different story the agreement would fall through; 2) where a
3 plea agreement was not offered until after a witness gave a
4 statement to police and was not told or led to believe he would
5 receive the benefit of the plea bargain only if his testimony
6 conformed with his prior statement to police; 3) where unwritten
7 portions of a plea bargain, extraneous to a written plea agreement,
8 provided that the witness had already passed a polygraph examination
9 indicating the witness was being truthful, the witness agreed to
10 testify truthfully, and the witness agreed he had already truthfully
11 told the facts to investigators.
The CCA noted that in these cases
12 the CSC had acknowledged that although the witnesses may have felt
13 some compulsion to testify consistently with their earlier
14 statements, the plea agreements obligated them only to testify
15 truthfully and did not obligate them to testify consistently with
16 prior statements regardless of the truth of those statements.
17 8, 13-16.)
18
19
20
21
22
23
24
25
26
27
28
(LD
The decision of the CCA continued as follows:
This line of authority was cogently examined by the Second
District Court of Appeal in Reyes, supra, 165 Cal.App.4th
426, 80 Cal.Rptr.3d 619. Reyes recognized, “ ‘The
California Supreme Court has refused to extend Medina
beyond the instance in which a plea agreement expressly
requires consistency between accomplice testimony and a
prior statement.’” (Id. at p. 434, 80 Cal.Rptr.3d 619.)
Thus, “[a] coordinate principle of the Supreme Court's
Medina jurisprudence is the understanding, ... that
although plea agreements calling for testimony naturally
will exert some compulsion to testify satisfactorily, an
agreement that binds the witness only to testify
truthfully, and not in some prearranged fashion, cannot be
deemed invalid.” (Id. at p. 435, 80 Cal.Rptr.3d 619.)
In Reyes, supra, 165 Cal.App.4th 426, 80 Cal.Rptr.3d 619,
the appellate court applied this line of authority and
upheld a plea agreement which contained a provision that
20
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
if it was discovered the witness had “‘already not told us
the truth about a material significant matter’” in a prior
police interview, the witness would be in breach of the
plea agreement. (Id. at p. 433, 80 Cal.Rptr.3d 619.) It
reasoned that “by its terms the interview provision did
not qualify or restrict [the witness's] agreement to
testify truthfully, nor did it direct that he testify in
conformity with his interview. Under our Supreme Court's
decisions on claims of ‘Medina error,’ these are critical,
dispositive distinctions.” (Id. at p. 434, 80 Cal.Rptr.3d
619.) Reyes rejected appellant's contention that this
provision effectively coerced the witness to testify in
accordance with the interview, as follows: “This claim is
hypothetical and unverifiable. Practically, it is far more
likely that [the witness] entered into the interview
provision because he, like the prosecution believed his
interview was truthful. If that is so, the provision posed
no improper compulsion. [Citation.]” (Id. at p. 434, 80
Cal.Rptr.3d 619.)
3. The plea agreements did not violate the Medina
rule.
Having examined the relevant line of authority, we now
examine appellant's contention that the plea agreements in
this case were unfairly coercive because they “impliedly
specified that in each case the witness would be deprived
of the benefit of his bargain if his testimony deviated
from the extrajudicial statements he had given to police.”
18
19
20
21
22
23
24
25
26
27
28
In assessing this claim, “we review the record and reach
an independent judgment whether the agreement under which
the witnesses testified was coercive and whether defendant
was deprived of a fair trial by the introduction of the
testimony, keeping in mind that generally we resolve
factual conflicts in favor of the judgment below.
[Citation.]” (Jenkins, supra, 22 Cal.4th at pp. 1010–1011,
95 Cal.Rptr.2d 377, 997 P.2d 1044.)
Appellant's argument is not convincing. Each of the plea
agreements required the witness to testify truthfully in
all proceedings. Also, they stated that each person had
given a truthful statement to a specified police officer
or investigator. Yet, there is no condition in the plea
agreements requiring the testimony to be identical to the
prior statement. Also, there is nothing in the plea
agreements indicating that the plea agreement is expressly
21
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6
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8
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13
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24
contingent on the witness sticking to a particular version
or script. (Garrison, supra, 47 Cal.3d at p. 771, 254
Cal.Rptr. 257, 765 P.2d 419.)
The district attorney clearly expected the witnesses to
testify in a manner that is materially consistent with
their prior statements to the law enforcement officials
specified in the plea agreements. The witnesses had
represented that those prior statements were truthful. But
the reference to the witness's prior police interview in
the plea agreement did not restrict the contents of the
witness's testimony. This is a critical distinction.
Unless the plea agreement specifically requires the
witness to testify in conformity to a pre-arranged script,
it does not violate the Medina rule. Where, as here, a
plea agreement only refers to a prior statement to police
and contains a representation that the prior statement is
the truth, the plea agreement is not unfairly coercive.
(Garrison, supra, 47 Cal.3d at p. 771, 254 Cal.Rptr. 257,
765 P.2d 419; Boyer, supra, 38 Cal.4th at p. 457, 42
Cal.Rptr.3d 677, 133 P.3d 581; Reyes, supra, 165
Cal.App.4th at p. 436, 80 Cal.Rptr.3d 619.)
Further, examination of the testimony of the four
witnesses dispels any concern that they were following a
prosecution created script. They were impeached with
inconsistencies between their trial testimony and pretrial
statements. In his closing argument, defense counsel
insisted that these witnesses should be disregarded
because their stories kept changing. Also, the testimony
of these four witnesses about the circumstances of
Neuman's murder is generally consistent with the physical
evidence recovered from the crime scene, Vizcarra's
pretrial statement to the police and some of the
observations by bystanders and neighbors.
For all of these reasons, we hold that the plea agreements
were not coercive and appellant's constitutional rights to
a fair trial and due process of law were not infringed by
admission of the contested testimony.
25 (LD 8, 16-18.)
26 ///
27
///
28
22
C.
1
2
3
Analysis of Application of Clearly Established
Federal Law pursuant to 28 U.S.C. § 2254(d)(1)
Petitioner relies on state cases involving a requirement in
4 plea agreements that a witness’s testimony either conform to earlier
5 statements (a so-called “consistency” clause or agreement) or result
6 in a defendant’s conviction; however, Petitioner also acknowledges
7
that state law permits plea agreements that merely require the
8
witness to testify fully and truthfully. (Doc. 22, 35.) Petitioner
9
10 nevertheless argues that the agreements in the present case in
11 effect require consistency with earlier statements and thus offend
12 due process.
13
14
The Supreme Court held in Pyle v. Kansas, 317 U.S. 213, 214-16
(1942) that allegations that the government knowingly coerced
15
16
perjured testimony from a prosecution witness stated a potential
17 claim for habeas relief under the Due Process Clause.
18 Mooney v. Holohan, 294 U.S. 103 (1935)).
Id.
(citing
Other cases following
19 Mooney establish that due process is violated if the government
20
knowingly uses perjured testimony or deliberately deceives the
21
22
23
court.
See Giglio v. United States, 405 U.S. 150, 153 (1972)
(prosecutor stated, and a witness testified, that there was no plea
24 deal when there was a lenient plea agreement); Miller v. Pate, 386
25 U.S. 1, 3-7 (1967) (prosecutor knowingly presented expert testimony
26 that misidentified paint on the defendant’s clothing as blood);
27
Alcorta v. Texas, 355 U.S. 28, 30-32 (1957) (per curiam) (the
28
23
1 prosecutor told a witness not to volunteer that the witness had a
2 sexual relationship with the defendant’s wife, and in testimony the
3
4
5
6
witness denied sexual involvement with the defendant’s wife).
However, there is no clearly established federal law within the
meaning of 28 U.S.C. § 2254(d)(1) that prohibits plea agreements
7 such as those in the present case, which imposed an obligation on
8 the witness to testify truthfully after the witness had given a
9 statement that was confirmed by the witness to be true.
10
11
12
13
Indeed,
even if the plea agreement were interpreted also to require
testimony consistent with the witness’s earlier statement, there is
no clearly established federal law providing that consistency
14 agreements violate due process.
15
In Cook v. Shriro, 538 F.3d 1000 (9th Cir. 2008), cert. den.
16 555 U.S. 1141 (2009), the court held that the petitioner was not
17
entitled to relief for a violation of due process where a witness
18
testified truthfully and believed a plea agreement required him to
19
20 testify consistently with an initial videotaped confession, and
21 where the agreement provided that the witness would provide truthful
22 responses to questions, would not knowingly make any false or
23
24
25
26
misleading statements, and would be responsible for violating the
agreement without any additional proof if the witness made two or
more statements which were inconsistent such that at least one of
27 them must be false.
28 given was false.
There was no indication that any testimony
The court in Cook reviewed the status of the
24
1 pertinent law as follows:
2
3
4
5
6
7
We agree that there is no Supreme Court case law
establishing that consistency clauses violate due process
or any other constitutional provision. Because it is an
open question in the Supreme Court's jurisprudence, we
cannot say “that the state court ‘unreasonably applied
clearly established Federal law’” by rejecting Cook's
claim based on the consistency agreement. Carey v.
Musladin, 549 U.S. 70, 127 S.Ct. 649, 654, 166 L.Ed.2d 482
(2006).
8 Cook, 538 F.3d at 1017.
9
10
11
12
13
Thus, in this circuit, a plea agreement may require an
accomplice to testify fully and truthfully without violating the Due
Process Clause so long as the accused has the opportunity to crossexamine and impeach the witness.
14 1065, 1077-78 (9th Cir. 1997).
Gallego v. McDaniel, 124 F.3d
“An agreement that requires a
15 witness to testify truthfully in exchange for a plea is proper so
16 long as ‘the jury is informed of the exact nature of the agreement,
17
defense counsel is permitted to cross-examine the accomplice about
18
the agreement, and the jury is instructed to weigh the accomplice's
19
20 testimony with care.’” Allen v. Woodford, 395 F.3d 979, 995 (9th
21 Cir. 2005) (quoting United States v. Yarbrough, 852 F.2d 1522, 1537
22 (9th Cir. 1988)); accord, Reyes v. Lewis, no. cv 10-1325-VAP (JCG),
23
24
25
26
2011 WL 2554519, *3-*4 (C.D.Cal. April 29, 2011), adopted 2011 WL
2554919 (June 28, 2011) (unpublished).
Although Petitioner argues that the testimony of the
27 accomplices and Ochoa should have been excluded because it was
28 unreliable, Petitioner does not provide authority for exclusion of
25
1 the evidence because of a witness’s bias or self-interest.
With
2 respect to the admission of relevant evidence contended to be
3
4
5
6
unreliable, the primary federal safeguards are provided by the Sixth
Amendment’s rights to counsel, compulsory process to obtain defense
witnesses, and confrontation and cross-examination of prosecution
7 witnesses; otherwise, admission of evidence in state trials is
8 ordinarily governed by state law.
Perry v. New Hampshire, - U.S. -,
9 132 S.Ct. 716, 723 (2012) (Due Process Clause does not require a
10
11
12
13
trial judge to conduct a preliminary assessment of reliability of
eyewitness identification made under suggestive circumstances not
arranged by the police).
The reliability of relevant testimony
14 typically falls within the province of the jury.
Id. at 728-29.
15 Absent improper police conduct or other state action, the
16 reliability of evidence may be tested through the normal procedures,
17
including the right to counsel and cross-examination, protective
18
rules of evidence, the requirement of proof of guilt beyond a
19
20 reasonable doubt, and jury instructions. Id.
21
Even if, as Petitioner argues, the introduction of statements
22 made involuntarily by third party witnesses could offend due process
23
24
25
26
if coerced by the government, there is no evidence of any coercive
methods in this case that would render any statement or testimony
involuntary.
Likewise, there is no evidence that compels a
27 conclusion that the witnesses’ testimony was false.
Under these
28 circumstances, Petitioner does not appear to have suffered any
26
1 prejudice and would not be entitled to habeas relief.
Cf. Cook v.
2 Schriro, 538 F.3d at 1018; Morris v. Woodford, 273 F.3d 826, 836-37
3
4
5
6
(9th Cir. 2001), cert. den. Woodford v. Morris, 537 U.S. 941 (2002)
(any error in admitting allegedly coerced accomplice testimony was
rendered harmless by evidence of the Petitioner’s admissions and
7 corroborating physical evidence of guilt).
Here, giving due
8 deference to the state court's factual findings, there was no
9 evidence of coercion, perjured testimony, or deliberate deception to
10
11
12
13
support a due process claim.
Further, the record contained
independent evidence of Petitioner’s guilt, including the eyewitness
testimony of Vizcarra and more distant bystanders and physical
14 evidence consistent with the accomplices’ reports and testimony.
15 The Court concludes that Petitioner suffered no prejudice that would
16 warrant habeas relief.
17
D. Analysis of the State Court’s Determination of Facts
18
pursuant to 28 U.S.C. § 2254(d)(2)
19
20
Petitioner argues that the state court’s findings of fact were
unreasonable in light of the evidence before the state court.
21
22
23
However, consideration of the findings in accordance with pertinent
legal standards reveals that the state court’s findings were
24 reasonable despite the initial report of Pena that Arellano was the
25 shooter, Brigg’s testimony, and occasional inconsistencies in the
26 statements of the numerous accomplices.
27
Pursuant to 28 U.S.C. § 2254(d)(2), a habeas petition may be
28
27
1 granted only if the state court’s conclusion was an unreasonable
2 determination of the facts in light of the evidence presented in the
3
4
5
6
state court proceeding.
Section 2254(d)(2) applies where the
challenge is based entirely on the state court record or where the
process of the state court is claimed to have been defective, such
7 as challenges to the sufficiency of the evidence, or allegations
8 that the state court’s processes were defective or factual findings
9 were omitted.
10
11
12
13
2004).
Taylor v. Maddox, 366 F.3d 992, 999-1001 (9th Cir.
For a determination of fact to be unreasonable, the state
court’s determination must be not merely incorrect or erroneous, but
rather objectively unreasonable.
Id. at 999.
It is not sufficient
14 that that reasonable minds might disagree with the determination or
15 have a basis to question the finding; rather, a federal habeas court
16 must find that the trial court’s factual determination was such that
17
a reasonable fact finder could not have made the finding. Rice v.
18
Collins, 546 U.S. 333, 340-42 (2006). To conclude that a state
19
20 court finding is unsupported by substantial evidence, a federal
21 habeas court must be convinced that an appellate panel, applying the
22 normal standards of appellate review, could not reasonably conclude
23
24
25
26
that the finding is supported by the record.
F.3d at 1000.
Taylor v. Maddox, 366
To determine that a state court’s fact finding
process is defective in some material way or non-existent, a federal
27 habeas court must be satisfied that any appellate court to whom the
28 defect is pointed out would be unreasonable in holding that the
28
1 state court’s fact finding process was adequate.
2
3
4
5
6
Id.
Here, Petitioner disagrees with the statement of facts from the
state court and relies instead on 1) inconsistent evidence in the
record, and 2) declarations, including a declaration of Alvarado
Arellano in which Arellano states that Petitioner was not the
7 shooter, and a declaration of Petitioner in which Petitioner
8 declares that he was not the shooter, was not a member of a criminal
9 street gang, and knew that the accomplices prevaricated in order to
10
11
12
13
obtain favorable plea bargains.
(Trav., doc. 38 at 14, 93-95.)
However, the record contained not only the accomplices’ testimony,
but also corroborative testimony from persons in the area and
14 consistent physical and expert evidence.
Applying the standards of
15 appellate review, a tribunal could reasonably conclude that the
16 finding that Petitioner was the shooter was supported by the record.
17
The declarations, which were not before the state court, are
18
not subject to this Court’s review in this proceeding. In Murray v.
19
20 Schriro, 745 F.3d 984, 1001 (9th Cir. 2014), the court reviewed
21 challenges to state court findings that were based entirely on the
22 record for “an unreasonable determination of the facts” pursuant to
23
24
25
26
27
28 U.S.C. § 2254(d)(2) without considering any new evidence as to
claims adjudicated on the merits by the state court (citing
Pinholster, 131 S.Ct. at 1401).
Based on the foregoing, it will be recommended that
28 Petitioner’s due process claim concerning introduction of the
29
1 statements of the accomplices and Ochoa be denied.
2
3
4
V.
Instruction on Accomplice Testimony and Related Claim
Regarding the Ineffective Assistance of Counsel
Petitioner argues that his right to due process under the Sixth
5 and Fourteenth Amendments was violated by the instructions given on
6 corroboration of accomplice testimony. Petitioner contends that the
7
instruction did not correctly convey the requirement of
8
corroboration because it permitted the jury to conclude that an
9
10 accomplice’s prior out-of-court statements could be used to
11 corroborate the accomplice’s in-court testimony.
Petitioner
12 contends that the error was prejudicial because the only strong
13
14
evidence against Petitioner was the accomplices’ testimony.
Petitioner raises the related claim that his counsel’s failure to
15
16
object to or otherwise to remedy the instructional error constituted
17 ineffective assistance of counsel in violation of Petitioner’s
18 rights under the Sixth and Fourteenth Amendments.
19
20
A.
The State Court Decision
The last reasoned decision on this claim was the CCA’s opinion,
21
22
23
in which the CCA initially found that Petitioner had forfeited the
claim because at trial the defense failed either to request a
24 modification of the instruction or to submit a legally correct
25 pinpoint instruction; however, the CCA concluded that there had been
26 no constitutional violation.
27
following:
28
(LD 8, 26-29.)
30
The CCA stated the
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. The Jury was Correctly Instructed on Accomplice
Corroboration.
The court instructed the jury on accomplice testimony with
CALCRIM Nos. 301, 318, and 335.
As given, CALCRIM No. 301 provided:
“Except for the testimony of Raul Pena, Sergio
Felix, Luis Avina Meza, and the out of court
statements of Alvaro Arellano, which require
supporting evidence, the testimony of only one
witness can prove any fact. Before you conclude
that the testimony of one witness proves a fact,
you should carefully review all the evidence.”
CALCRIM No. 318 informed the jurors:
“You have heard evidence of statements that a
witness made before the trial. If you decide
that the witness made those statements, you may
use those statements in two ways: [¶] 1. To
evaluate whether the witness's testimony in
court is believable; [¶] AND [¶] 2. As evidence
that the information in those earlier statements
is true.”
CALCRIM No. 335 instructed the jurors that Pena, Felix,
Meza and Arellano were accomplices to the charged
offenses. Then it stated:
“You may not convict the defendant of [the
charged offenses], or any lesser crime, based on
the statement or testimony of an accomplice
alone. You may use the statement or testimony of
an accomplice to convict the defendant only if:
[¶] 1. The accomplice's statement or testimony
is supported by other evidence that you believe;
[¶] 2. That supporting evidence is independent
of the accomplice's statement or testimony [¶]
AND [¶] 3. That supporting evidence tends to
connect the defendant to the commissions of the
crimes.”
Appellant argues that while CALCRIM Nos. 318 and 335 are
generally correct, the instructions were misleading in
this case because there were numerous accomplices who all
31
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gave statements to the police. In appellant's view,
CALCRIM Nos. 318 and 335 incorrectly permitted the jury to
find “that the testimony of one accomplice was
corroborated by the statements of another accomplice or
that the testimony of one accomplice was corroborated by
the statements of that same accomplice.” Based on this
premise, appellant asserts the court had a sua sponte
obligation to modify these instructions and inform the
jury that the required corroboration of an accomplice's
testimony must be both independent of any prior out-ofcourt statements that were made by the accomplice and
independent of both the testimony and prior out-of-court
statements that were made by the other accomplices. As we
will explain, this claim of instructional error is both
procedurally defective and substantively meritless.
Procedurally, appellant forfeited the right to raise this
issue on appeal because he did not seek modification of
the instructions in the trial court or submit a legally
correct pinpoint instruction. Section 1259 provides that
we may review “any instruction given, refused or modified,
even though no objection was made thereto” in the trial
court. (§ 1259.) Even so, a defendant may not complain on
appeal that a legally correct jury instruction was too
general or incomplete unless he or she sought clarifying
or amplifying language in the trial court. (People v.
Tuggles (2009) 179 Cal.App.4th 339, 364–365, 100
Cal.Rptr.3d 820 (Tuggles); People v. Cleveland (2004) 32
Cal.4th 704, 750, 11 Cal.Rptr.3d 236, 86 P.3d 302; People
v. Hart (1999) 20 Cal.4th 546, 622, 85 Cal.Rptr.2d 132,
976 P.2d 683.)
Essentially, appellant is arguing that due to the
unusually large number of accomplices who all made
pretrial statements, the court had a sua sponte duty to
modify the otherwise correct instructions in a way that
avoided the potentially problematic interpretation he
identified in his briefing. Appellant reasons that such
an instruction fell within the ambit of general principles
of law closely and openly connected to the facts and
necessary for the jury's understanding of the case. We
disagree.
A trial court is not required to instruct sua sponte on
specific points developed at trial. (People v. Daya (1994)
29 Cal.App.4th 697, 714, 34 Cal.Rptr.2d 884.) If appellant
was concerned that under the unique facts of this case,
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the jury needed additional instruction on accomplice
corroboration, he was required to submit a special
instruction addressing this point. “[D]efendant is not
entitled to remain mute at trial and scream foul on appeal
for the court's failure to expand, modify and refine
standardized jury instructions.” (Ibid.)
Tuggles, supra, 179 Cal.App.4th 339, 100 Cal.Rptr.3d 820
is directly on point. There, CALCRIM Nos. 318 and 335 were
given without objection or request for modification. On
appeal, Tuggles argued that when these instructions were
read together, they “erroneously instructed the jury that
an accomplice's testimony at trial could be corroborated
by the same accomplice's prior out-of-court statements.”
(Id. at p. 363, fn. omitted.) The appellate court
concluded the point was both forfeited and lacked merit.
With respect to forfeiture, the court reasoned:
“The gravamen of Tuggle's argument is a claim of
improper ‘completion of the instruction by the
trial court.’ To preserve the issue, Tuggles was
required to request the additional language
needed to complete the jury instructions.
[Citation.] The lack of such a request by
Tuggles forfeited the issue for review.
[Citation.]” (Tuggles, supra, 179 Cal.App.4th at
pp. 364–365, 100 Cal.Rptr.3d 820.)
The appellate court then considered the substantive point
in an ineffective assistance of counsel context. It
decided no reasonable juror would have understood CALCRIM
Nos. 318 and 335 as permitting the witness to corroborate
his own testimony. (Tuggles, supra, 179 Cal.App.4th at p.
365, 100 Cal.Rptr.3d 820.) Use of the word “independent”
in CALCRIM No. 335 to describe the sort of evidence that
could serve as corroboration negates the defendant's
assertion that the instruction allowed the accomplice to
corroborate his own testimony. Further, even if CALCRIM
Nos. 318 and 335 were susceptible to this interpretation,
“any mistaken impression was dispelled by the court's
giving of CALCRIM No. 301.” (Ibid.) “This instruction
informed the jury that [the witness's] status as an
accomplice disallowed his testimony to suffice for
conviction without additional evidence in support.” (Id.
at p. 366.) With the additional consideration of CALCRIM
No. 301, “no reasonable jury could have understood the
instructions to allow an accomplice to corroborate
33
1
himself. [Citations.]” (Id. at p. 366.)
2
Appellant argues Tuggles is distinguishable because this
case involves multiple accomplices and the prosecutor
implied in his closing arguments that an accomplice's
testimony could be corroborated by his pretrial statement
and/or the testimony of other accomplices.
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Neither of these factual differences pertains to the issue
of forfeiture. We find Tuggles to be persuasive on that
point. If appellant wanted additional instruction on
accomplice corroboration or modification of generally
correct instructions, it was incumbent on him to request
it. Also, if appellant thought the prosecutor was
misstating the law during closing arguments, he was
affirmatively obligated to assert a timely objection and
request admonishment. (People v. Hill (1998) 17 Cal.4th
800, 820, 72 Cal.Rptr.2d 656, 952 P.2d 673.)
Since appellant did not request modification of CALCRIM
Nos. 318 or 335, did not offer a pinpoint instruction
concerning multiple accomplices, and did not object to the
prosecutor's closing argument on this basis, we conclude
the point was not preserved for direct appellate review.
(Tuggles, supra, 179 Cal.App.4th at pp. 364–365, 100
Cal.Rptr.3d 820.)
Furthermore, we agree with the reasoning in Tuggles that
inclusion of CALCRIM No. 301 in the jury charge precluded
the erroneous interpretation urged by appellant. The
correctness of jury instructions is to be determined from
the entire charge of the court, not from a consideration
of parts of an instruction or from a particular
instruction. (Estelle v. McGuire (1991) 502 U.S. 62, 72,
112 S.Ct. 475, 116 L.Ed.2d 385 (Estelle); see, e.g.,
People v. Solomon (2010) 49 Cal.4th 792, 824, 112
Cal.Rptr.3d 244, 234 P.3d 501; People v. Jones (2003) 108
Cal.App.4th 455, 468, 133 Cal.Rptr.2d 358.) We must review
jury instructions based on how a reasonable juror would
construe them. (People v. Clair (1992) 2 Cal.4th 629, 688,
7 Cal.Rptr.2d 564, 828 P.2d 705.) The test on appeal is
“‘whether there is a reasonable likelihood that the jury
has applied the challenged instruction in a way’ that
violates the Constitution. [Citation.]” (Estelle, supra,
502 U .S. at p. 72.) Reasonable jurors would not have
construed the language of CALCRIM Nos. 318 and 335 in the
manner suggested by appellant. Since it is not reasonably
34
1
2
3
likely that the jury applied the instructions in a way
that violates the state or federal constitutions, this
claim of evidentiary error fails. (Tuggles, supra, 179
Cal.App.4th at pp. 365–366, 100 Cal.Rptr.3d 820.)
4 (LD 8, 25-29.)
5
6
7
B.
Analysis
Any challenge that Petitioner might have had that was based on
state law, such as compliance with Cal. Pen. Code § 1111 regarding
8
9
corroboration of accomplice testimony, is not subject to this
10 Court’s review in this proceeding.
A challenge to a jury
11 instruction based solely on an error under state law does not state
12 a claim cognizable in federal habeas corpus proceedings.
13
14
McGuire, 502 U.S. 62, 72 (1991).
Estelle v.
A claim that an instruction was
deficient compared to a state model or that a trial judge
15
16
incorrectly interpreted or applied state law governing jury
17 instructions does not entitle one to relief under § 2254, which
18 requires violation of the Constitution, laws, or treaties of the
19 United States.
20
28 U.S.C. §§ 2254(a), 2241(c)(3).
Further, Respondent asserts that any error is procedurally
21
22
23
barred from this Court’s review.
In response to Respondent’s
assertion that any claim of instructional error was procedurally
24 defaulted pursuant to California’s rule requiring the defense to
25 challenge the instruction at trial, Petitioner argues that his
26 counsel was ineffective in failing to request modification of the
27
instructions and to submit an appropriate pinpoint instruction.
28
35
Respondent correctly contends that California’s rule requiring
1
2 a defense challenge to instructions at the trial level is recognized
3 as independent and adequate such that a failure to comply with it
4 results in forfeiture of the issue in a proceeding pursuant to 28
1
5 U.S.C. § 2254.
Paulino v. Castro, 371 F.3d 1083, 1092-93 (9th Cir.
6 2004); see Huff v. Martel, no. 2:08-cv-3053-JAM-TJB, 2010 WL
7 3608111, *10-*11 (E.D.Cal. Sept. 10, 2010) (unpublished).
However, it is also established that in a habeas case, the
8
9 issue of procedural bar need not be resolved if another issue is
10 capable of being resolved against the petitioner.
11 Singletary, 520 U.S. 518, 525 (1997).
Lambrix v.
Likewise, the procedural
12 default issue, which may necessitate determinations concerning cause
13 and miscarriage of justice, may be more complex than the underlying
14 issues in the case.
In such circumstances, it may make more sense
15 to proceed to the merits.
See Franklin v. Johnson, 290 F.3d 1223,
16 1232 (9th Cir. 2002).
Here, because Petitioner also asserts ineffective assistance of
17
18 counsel based on counsel’s failure to challenge or correct the
19 instructions, the Court deems it most efficient to proceed to the
20
21
1
The doctrine of procedural default is a specific application of the more general
It provides that when a state court
decision on a claim rests on a prisoner=s violation of either a state procedural
rule that bars adjudication of the case on the merits or a state substantive rule
that is dispositive of the case, and the state law ground is independent of the
federal question and adequate to support the judgment such that direct review in
the United States Supreme Court would be barred, then the prisoner may not raise
the claim in federal habeas absent a showing of cause and prejudice or that a
failure to consider the claim will result in a fundamental miscarriage of justice.
Walker v. Martin, - U.S. -, 131 S.Ct. 1120, 1127 (2011); Coleman v. Thompson, 501
U.S. 722, 729-30 (1991); Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003);
Wells v. Maass, 28 F.3d 1005, 1008 (9th Cir. 1994). The doctrine applies
regardless of whether the default occurred at trial, on appeal, or on state
collateral review. Edwards v. Carpenter, 529 U.S. 446, 451 (2000).
22 doctrine of independent state grounds.
23
24
25
26
27
28
36
1 merits of Petitioner’s claim concerning erroneous instructions
2 regarding corroboration of accomplice testimony.
3
The only basis for federal collateral relief for instructional
4 error is that the infirm instruction or the lack of instruction by
5 itself so infected the entire trial that the resulting conviction
6 violates due process.
Estelle v. McGuire, 502 U.S. at 71-72; Cupp
7 v. Naughten, 414 U.S. 141, 147 (1973); see Donnelly v.
8 DeChristoforo, 416 U.S. 637, 643 (1974) (it must be established not
9 merely that the instruction is undesirable, erroneous or even
10 “universally condemned,” but that it violated some right guaranteed
11 to the defendant by the Fourteenth Amendment).
Further, the
12 instruction may not be judged in artificial isolation, but must be
13 considered in the context of the instructions as a whole and the
14 trial record.
Estelle, 502 U.S. at 72.
In reviewing an ambiguous
15 instruction, it must be determined whether there is a reasonable
16 likelihood that the jury applied the challenged instruction in a way
17 that violates the Constitution.
Estelle, 502 U.S. at 72-73
18 (reaffirming the standard as stated in Boyde v. California, 494 U.S.
19 370, 380 (1990)).
The Court in Estelle emphasized that the Court
20 had defined the category of infractions that violate fundamental
21 fairness very narrowly, and that beyond the specific guarantees
22 enumerated in the Bill of Rights, the Due Process Clause has limited
23 operation.
24
Id. at 72-73.
Moreover, even if there is instructional error, a petitioner is
25 generally not entitled to habeas relief for the error unless it is
26 prejudicial.
The harmless error analysis applies to instructional
27 errors as long as the error at issue does not categorically vitiate
28 all the jury's findings.
Hedgpeth v. Pulido, 555 U.S. 57, 61 (2008)
37
1 (citing Neder v. United States, 527 U.S. 1, 11 (1999) (quoting
2 Sullivan v. Louisiana, 508 U.S. 275 (1993) concerning erroneous
3 reasonable doubt instructions as constituting structural error)).
4 In Hedgpeth v. Pulido, the United States Supreme Court cited its
5 previous decisions that various forms of instructional error were
6 trial errors subject to harmless error analysis, including errors of
7 omitting or misstating an element of the offense or erroneously
8 shifting the burden of proof as to an element.
9 60-61.
Hedgpeth, 555 U.S.
To determine whether a petitioner pursuant to § 2254
10 suffered prejudice from such an instructional error, a federal court
11 must determine whether a petitioner suffered actual prejudice by
12 assessing whether, in light of the record as a whole, the error had
13 a substantial and injurious effect or influence in determining the
14 jury’s verdict.
Hedgpeth, 555 U.S. at 62; Brecht v. Abrahamson, 507
15 U.S. 619, 638 (1993).
16
Petitioner contends that the instructions must be evaluated in
17 light of the prosecutor’s argument that the accomplices’ testimony
18 was corroborated by other evidence coming from the accomplices.
The
19 prosecutor’s argument will be further analyzed in connection with
20 Petitioner’s claims of prosecutorial misconduct.
However, in the
21 context of the entire case, the Court will consider Petitioner’s
22 argument that the possibility that the jury understood the
23 instructions concerning corroboration of accomplice testimony to
24 permit corroboration by accomplice testimony itself was magnified by
25 the multiplicity of accomplices, and the instructional error
26 rendered his trial unfair because the only significant or strong
27 evidence identifying Petitioner as the shooter came from the
28 accomplices.
38
1
The Due Process Clause does not require corroboration of
2 accomplice testimony.
3 352 (1969).
United States v. Augenblick, 393 U.S. 348,
Unless accomplice testimony is incredible or so
4 insubstantial on its face that it results in a denial of fundamental
5 unfairness, corroboration is not required by the Constitution or
6 federal law.
7
Laboa v. Calderon, 224 F.3d 972, 979 (9th Cir. 2000).
Here, the accomplices’ testimony concerning Petitioner’s
8 shooting of the victim was corroborated substantially by the
9 testimony and statements of Vizcarra, observations of neighbors and
10 persons in the vicinity, and uncontroverted physical evidence.
The
11 accomplices’ testimony was consistent with the independent evidence.
12 The record contained significant independent evidence that
13 corroborated accomplice testimony.
It was not likely that the
14 jurors understood the instructions to require independent
15 corroboration of accomplice testimony and simultaneously to provide
16 that accomplice testimony itself could provide that corroboration.
17 The state court’s conclusion that it was not likely that the jurors’
18 understood the instructions to permit corroboration by other
19 accomplice testimony was not objectively unreasonable and was not
20 contrary to, or an unreasonable application of, clearly established
21 federal law.
22
Here, as the independent evidence of Petitioner’s culpability
23 was strong and came from many sources, the Court concludes that
24 Petitioner did not suffer any prejudice from the instructions on
25 accomplice testimony.
Contrary to Petitioner’s representations
26 concerning the record, there was strong independent evidence that
27 Petitioner was the shooter.
Before trial, Petitioner was identified
28 as the shooter not only by Pena, Felix, and Meza, but also by
39
1 Vizcarra, who reported Petitioner took a gun and pointed it towards
2 the ground where the victim was, which was followed immediately by
3 the sound of three or more gunshots.
4 1788.)
(8 RT 1726, 1742-43, 1746-47,
Before trial, in addition to Felix, Pena, and Meza, various
5 persons who were not accomplices reported that the shooter pulled
6 out or pointed a gun down at the victim, who was on or close to the
7 ground, and fired multiple gunshots in rapid succession.
(5 RT
8 1057, 1060, 1070 [Sabrina Lominario]; 4 RT 985, 990-91 [Marlena
9 Phipps]; 8 RT 1742-43, 1741 [Vizcarra].)
Although Meza and Felix
10 identified Petitioner as the shooter at trial, independent witnesses
11 testified that the shooter pointed the gun down at the victim, who
12 was down, and fired multiple gunshots in rapid succession.
(2 RT
13 208-09, 218-21, 233 [Lominario]; id. at 246, 253-54, 256 [Phipps];
14 id. at 348, 360-62, 427, 442-43 [Michael Steinberg].)
The
15 independent witnesses’ observations of the person with short hair
16 were consistent with the accomplice’s representations regarding
17 Petitioner’s conduct and appearance.
The physical evidence also
18 supported the testimony concerning multiple shots from one gun fired
19 by a person into a victim who was down.
20
Accordingly, it will be recommended that Petitioner’s claim of
21 instructional error regarding accomplice testimony be denied.
22
VI.
Ineffective Assistance of Counsel
23
Petitioner argues that his rights under the Sixth and
24 Fourteenth Amendment were violated by counsel’s failure to challenge
25 the accomplice instructions.
26
27
A.
Legal Standards
The law governing claims concerning ineffective assistance of
28 counsel is clearly established for the purposes of the AEDPA
40
1 deference standard set forth in 28 U.S.C. § 2254(d).
Premo v.
2 Moore, - U.S. -, 131 S.Ct. 733, 737-38 (2011); Canales v. Roe, 151
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F.3d 1226, 1229 n.2 (9th Cir. 1998).
To demonstrate ineffective assistance of counsel in violation
of the Sixth and Fourteenth Amendments, a convicted defendant must
show that 1) counsel’s representation fell below an objective
standard of reasonableness under prevailing professional norms in
light of all the circumstances of the particular case; and 2) unless
prejudice is presumed, it is reasonably probable that, but for
counsel’s errors, the result of the proceeding would have been
different.
Strickland v. Washington, 466 U.S. 668, 687-94 (1984);
Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994).
With respect to this Court’s review of a state court’s decision
concerning a claim of ineffective assistance of counsel, the Supreme
Court has set forth the standard of decision as follows:
To establish ineffective assistance of counsel “a
defendant must show both deficient performance by counsel
and prejudice.” Knowles v. Mirzayance, 556 U.S. ––,––,129
S.Ct. 1411, 1419, 173 L.Ed.2d 251 (2009). In addressing
this standard and its relationship to AEDPA, the Court
today in Richter, –– U.S., at –– – ––, 131 S.Ct. 770,
gives the following explanation:
“To establish deficient performance, a person
challenging a conviction must show that
‘counsel's representation fell below an
objective standard of reasonableness.’
[Strickland,] 466 U.S., at 688 [104 S.Ct. 2052].
A court considering a claim of ineffective
assistance must apply a ‘strong presumption’
that counsel's representation was within the
‘wide range’ of reasonable professional
assistance. Id., at 689 [104 S.Ct. 2052]. The
challenger's burden is to show ‘that counsel
made errors so serious that counsel was not
functioning as the “counsel” guaranteed the
41
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25
26
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28
defendant by the Sixth Amendment.’ Id., at 687
[104 S.Ct. 2052].
“With respect to prejudice, a challenger must
demonstrate ‘a reasonable probability that, but
for counsel's unprofessional errors, the result
of the proceeding would have been different.’
...
“ ‘Surmounting Strickland’s high bar is never an
easy task.’ Padilla v. Kentucky, 559 U.S. ––, ––
[130 S.Ct. 1473, 1485, 176 L.Ed.2d 284] (2010).
An ineffective-assistance claim can function as
a way to escape rules of waiver and forfeiture
and raise issues not presented at trial [or in
pretrial proceedings], and so the Strickland
standard must be applied with scrupulous care,
lest ‘intrusive post-trial inquiry’ threaten the
integrity of the very adversary process the
right to counsel is meant to serve. Strickland,
466 U.S., at 689–690 [104 S.Ct. 2052]. Even
under de novo review, the standard for judging
counsel's representation is a most deferential
one. Unlike a later reviewing court, the
attorney observed the relevant proceedings, knew
of materials outside the record, and interacted
with the client, with opposing counsel, and with
the judge. It is ‘all too tempting’ to ‘secondguess counsel's assistance after conviction or
adverse sentence.’ Id., at 689 [104 S.Ct. 2052];
see also Bell v. Cone, 535 U.S. 685, 702, 122
S.Ct. 1843, 152 L.Ed.2d 914 (2002); Lockhart v.
Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122
L.Ed.2d 180 (1993). The question is whether an
attorney's representation amounted to
incompetence under ‘prevailing professional
norms,’ not whether it deviated from best
practices or most common custom. Strickland, 466
U.S., at 690, 104 S.Ct. 2052.
“Establishing that a state court's application
of Strickland was unreasonable under § 2254(d)
is all the more difficult. The standards created
by Strickland and § 2254(d) are both ‘highly
deferential,’ id., at 689 [104 S.Ct. 2052];
Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 117
S.Ct. 2059, 138 L.Ed.2d 481 (1997), and when the
42
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3
4
5
6
7
two apply in tandem, review is ‘doubly’ so,
Knowles, 556 U.S., at ––––, 129 S.Ct., at 1420.
The Strickland standard is a general one, so the
range of reasonable applications is substantial.
556 U.S., at –––– [129 S.Ct., at 1420]. Federal
habeas courts must guard against the danger of
equating unreasonableness under Strickland with
unreasonableness under § 2254(d). When § 2254(d)
applies, the question is not whether counsel's
actions were reasonable. The question is whether
there is any reasonable argument that counsel
satisfied Strickland's deferential standard.”
8
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17
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20
21
22
23
24
25
26
27
28
Premo v. Moore, 131 S.Ct. at 739-40 (quoting Harrington v. Richter,
131 S.Ct. 770 (2011)).
B.
Analysis
Respondent contends that Petitioner’s claim of ineffective
assistance regarding accomplice instructions was never presented to
the state courts and thus was not exhausted, and that in any event,
Petitioner’s claim fails on the merits.
The claim was not addressed in the CCA’s decision (LD 8, 25-29)
or in Petitioner’s petition for writ of habeas corpus filed in the
CSC (LD 12.).
Nevertheless, as the foregoing discussion concerning
Petitioner’s claim of instructional error shows, the California
courts properly concluded that it was not reasonably likely that the
jury had applied the instructions in a manner that violated the
Constitution.
Considering the state court decision in this case and
the holding in the Tuggles case discussed by the CCA in its
decision, the record reflects it is not reasonably probable that the
trial court would have ruled favorably on any challenge lodged by
trial counsel to the instructions.
See Styers v. Schriro, 547 F.3d
1026, 1030 n.5 (9th Cir. 2008) (a petitioner claiming ineffective
assistance based on counsel’s failure to file a particular motion
43
1 must demonstrate “a likelihood of prevailing on the motion,” and “a
2 reasonable probability that the granting of the motion would have
3 resulted in a more favorable outcome in the entire case”).
Here,
4 counsel could have made a reasonable tactical decision not to
5 challenge the instructions or argument to minimize the likelihood
6 that the prosecutor would highlight the independent evidence even
7 further in responsive argument.
Further, in light of the
8 independent evidence of Petitioner’s guilt in the record, it does
9 not appear that any theoretical ambiguity in the instruction
10 prejudiced Petitioner.
11
The Court concludes that counsel’s failure to challenge the
12 accomplice instructions did not constitute ineffective assistance of
13 counsel.
Petitioner has not shown that counsel’s omission resulted
14 in prejudice.
Accordingly, it will be recommended that Petitioner’s
15 claim of ineffective assistance of counsel relating to accomplice
16 instructions be denied.
17
VI.
Admission of the Autopsy Report
18
Petitioner claims that admission of an autopsy report violated
19 his rights to confrontation and cross-examination guaranteed by the
20 Sixth and Fourteenth Amendments because the report was testimonial,
21 and it was admitted without the testimony of the pathologist who
22 performed the autopsy.
23
24
A.
The State Court’s Decision
The last reasoned decision on the Confrontation Clause claim
25 must be identified.
Although the CCA addressed the general issue,
26 the CCA did not decide the precise issue presented by Petitioner;
27 the CCA instead reviewed the evidence but concluded that any alleged
28
44
2
1 Confrontation Clause error was harmless beyond a reasonable doubt.
2 The CCA did not determine whether there was an actual Confrontation
3 Clause error.
A state court decision cannot be classified as an
4 “adjudication on the merits” within the meaning of § 2254(d)(1) if
5 the state court failed to resolve all determinative issues of
6 federal law.
In analogous circumstances, a state court’s decision
7 on the prejudice prong of an ineffective assistance claim does not
8 constitute a decision on whether there was unreasonable, sub9 standard conduct of counsel; the portion or element of the claim
10 that was not analyzed is determined de novo by this Court.
Porter
11 v. McCollum, 558 U.S. 30, 37-38 n.6, 39 (2009) (per curiam);
12 Rompilla v. Beard, 545 U.S. 374, 390 (2005).
Arguably, the last reasoned decision was the decision of the
13
14 trial court, which admitted the evidence over objection.
Medley v.
15 Runnels, 506 F.3d 857, 863 (9th Cir. 2007) (concluding that where
16 the state appellate courts had not discussed an issue regarding
17 evidence concerning a flare gun, the state trial court “effectively
18 ruled on this issue when it decided that if the prosecution
19 presented evidence as to how a flare gun functions, then the issue
20
21
22
23
24
25
26
27
28
2
The CCA concluded that admission of the autopsy report and Dr. Lawrence’s
testimony summarizing its contents did not prejudice the Petitioner. The court
reasoned that the error was harmless beyond a reasonable doubt in light of the
entire record because the cause and manner of the victim’s death was undisputed at
trial, where the defense suggested that Arellano was the killer and thereby
attempted to raise a reasonable doubt as to the identity of the shooter; there was
independent testimony about the autopsy by percipient witnesses who were subject
to cross-examination by defense counsel; the contents of the doctor’s testimony
and autopsy report were largely cumulative to the percipient witnesses’ testimony
and physical evidence recovered at the crime scene; all the evidence corroborated
the contents of the autopsy report and the doctor’s testimony concerning the
victim’s injuries, the directional path of the bullets, and the cause of death;
and Petitioner did not suggest any new evidence that was available only if Dr.
Schmunk had been cross-examined. (LD 8, 22-25.)
45
1 of whether the flare gun was a firearm would be moot).
In Medley,
2 the Court of Appeals concluded that the terse pretrial ruling
3 constituted the last reasoned decision under Ylst and would be the
4 ruling reviewed in habeas corpus.
Medley v. Runnels, 506 F.3d at
5 863.
6
Even if a state court has failed to set forth its reasoning, a
7 federal habeas court must determine what arguments or theories could
8 have supported the state court's decision and then determine whether
9 fairminded jurists could disagree that those arguments or theories
10 are inconsistent with the holding in a prior decision of this Court.
11 Harrington v. Richter, 131 S.Ct. at 786.
When the state court does
12 not supply reasoning for its decision, this Court does not conduct
13 de novo review but rather conducts an independent review of the
14 record to ascertain whether the state court's decision was
15 objectively unreasonable.
Walker v. Martel, 709 F.3d 925, 939 (9th
16 Cir. 2013), cert. den. Walker v. Chappell, 134 S.Ct. 514 (2013).
B.
17
18
Analysis
The Confrontation Clause of the Sixth Amendment, made binding
19 on the states by the Fourteenth Amendment, provides that in all
20
21
22
23
criminal cases, the accused shall enjoy the right to be confronted
with the witnesses against him.
(1965).
Pointer v. Texas, 380 U.S. 400
The main purpose of confrontation as guaranteed by the
24 Sixth Amendment is to secure the opportunity for cross-examination
25 to permit the opponent of the party presenting a witness to test the
26 believability of the witness and the truth of his or her testimony
27
by examining the witness=s story, testing the witness=s perceptions
28
46
1 and memory, and impeaching the witness.
Delaware v. Van Arsdall,
2 475 U.S. 673, 678 (1986); Davis v. Alaska, 415 U.S. 308, 316 (1974).
3
4
5
6
Even if there is a violation of the right to confrontation, habeas
relief will not be granted unless the error had a substantial and
injurious effect or influence in determining the jury’s verdict.
7 Ocampo v. Vail, 649 F.3d 1098, 1114 (9th Cir. 2011), cert. den.,
8 Warner v. Ocampo, 131 S.Ct. 62 (2012); Jackson v. Brown, 513 F.3d
9 1057, 1084 (9th Cir. 2008) (citing Brecht v. Abrahamson, 507 U.S. at
10
11
12
13
637).
Petitioner relies on Crawford v. Washington, 541 U.S. 36, 59
(2004), holding that testimonial statements of witnesses absent from
14 trial may be admitted only where the declarant is unavailable and
15 the defendant has had a prior opportunity to cross-examine the
16 witness; and Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009),
17
holding that notarized, sworn certificates of analysis prepared by
18
laboratory analysts that under state law constitute prima facie
19
20 evidence come within the core class of testimonial documents
21 protected by the Sixth Amendment.
Petitioner contends that in
22 argument to the jury, the prosecutor here repeatedly referred to the
23
24
25
26
nature of the injuries found in the autopsy, specifically,
lacerations, abrasions, glass, the bullet removed from the victim
that was linked to the gun recovered by police, and the pattern of
27 five wounds to the victim’s back as reflecting the victim’s having
28
47
1 been punched, kicked, and shot while down.
The prosecutor also
2 reminded the jurors that they could observe the autopsy photographs.
3
4
5
6
However, Petitioner may not rely on Melendez-Diaz or other
Supreme Court decisions made after the date of the state court’s
merits decision.
Clearly established federal law within the meaning
7 of § 2254(d)(1) is the Supreme Court case law that existed on the
8 day the state court rendered its merits adjudication.
9 Fisher, 132 S. Ct. 38, 44 (2011).
10
11
12
13
Greene v.
Section 2254(d)(1) requires
federal courts to “focu[s] on what a state court knew and did,” and
to measure state-court decisions “against this Court's precedents as
of ‘the time the state court renders its decision.’”
14 Cullen v. Pinholster, 131 S.Ct. at 1399).
Id. (quoting
A later affirmance on
15 alternative procedural grounds or a later decision by a higher state
16 court denying review would not alter this. Id. at 45.
17
Here, the state trial court’s merits adjudication occurred on
18
January 20, 2009. (2 RT 347, 381-82, 384-85; II CT 352-53). In
19
2004, five years before the adjudication, in Crawford v. Washington,
20
541 U.S. at 53B54, the Court held that the Confrontation Clause bars
21
the admission of testimonial hearsay unless the declarant is
22
unavailable and the accused had Aa prior opportunity for
23
cross-examination.@ The Crawford holding abrogated in part the prior
24
rule that the admission of testimonial hearsay did not violate the
25
Confrontation Clause if the declarant was unavailable and the
26
statement fell within a Afirmly rooted hearsay exception@ or
27
otherwise bore indicia of reliability. Ohio v. Roberts, 448 U.S.
28
56, 66 (1980). Although Crawford did not define “’testimonial= or
48
1 >nontestimonial,= it made clear that the Confrontation Clause was
2 concerned with >testimony,= which >is typically [a] solemn declaration
3 or affirmation made for the purpose of establishing or proving some
4 fact,= and noted that >[a]n accuser who makes a formal statement to
5 government officers bears testimony in a sense that a person who
6 makes a casual remark to an acquaintance does not.’”
Delgadillo v.
7 Woodford, 527 F.3d 919, 927 (9th Cir. 2008) (quoting Crawford, 541
8 U.S. at 51 (first alteration in original) (internal quotation marks
9 omitted)).
10
However, Melendez-Diaz v. Massachusetts, relied on by
11 Petitioner, was not decided until June 25, 2009, after the state
12 court’s merits decision in the present case.
13 U.S. 305.
Melendez-Diaz, 557
Because the clearly established federal law based on
14 Crawford did not delineate what was testimonial, a state court
15 decision at that time that admitting an autopsy report without
16 confrontation or cross-examination of the person who authored the
17 report was not contrary to, or an unreasonable application of,
18 clearly established federal law where another forensic pathologist
19 from the laboratory gave expert testimony based on the data in the
20 report.
See, McNeiece v. Lattimore, no. ED CV 07-0951 RGK (FMO),
21 2009 WL 1464368, *7-*10 (C.D.Cal. May 22, 2009) (unpublished);
22 Rogovich v. Schriro, no. CV-00-1896-PHX-ROS, 2008 WL 2757362, at *6
23 (D. Ariz. July 14, 2008), aff’d., Rogovich v. Ryan, 694 F.3d 1094
24 (9th Cir. 2012), cert. den. 134 S.Ct. 93 (2013); cf. Flournoy v.
25 Small, 681 F.3d 1000, 1004 (9th Cir. 2012), cert. den. 133 S.Ct. 880
26 (2013) (an analogous state court decision that found no
27 Confrontation Clause violation in the admission of a scientist’s
28 testimony based on the tests and reports of other crime laboratory
49
1 workers was not contrary to, or an unreasonable application of,
2 clearly established federal law, and citing Meras v. Sisto, 676 F.3d
3 1184, 1188 (9th Cir. 2012) (Crawford did not clearly establish
4 whether a forensic laboratory report was testimonial)).
5
Even considering the more recent holdings in Melendez-Diaz and
6 Bulcoming v. New Mexico, 564 U.S. -, 131 S.Ct. 2705 (2011) (holding
7 testimonial scientists’ unsworn, formal certificates of analysis
8 made for the purpose of introduction in evidence to establish proof
9 of the results of the analysis), a fairminded jurist could argue
10 that it was uncertain whether the Supreme Court would classify
11 autopsy reports as testimonial, or would find fundamentally unfair
12 the admission of the testimony of another expert who relied in part
13 on an autopsy report and in part on independent evidence of the
14 substance and procedure of the autopsy.
See, Flournoy v. Small, 681
15 F.3d at 1005; Vega v. Walsh, 669 F.3d 123, 127-28 n.2 (2d Cir.
16 2012); Nardi v. Pepe, 662 F.3d 107, 112, (1st Cir. 2011).
17
In any event, regardless of the date of the relevant state
18 court decision or the status of the law as clearly established,
19 Petitioner has not shown that any Confrontation Clause violation was
20 prejudicial.
Although Dr. Lawrence did not perform the autopsy, he
21 was the laboratory’s owner and custodian of records and was a
22 pathologist in the laboratory who had practiced for thirty-six
23 years, performed over 8,000 autopsies, and testified in court over
24 1,000 times (2 RT 379-81, 384-85); thus, he had personal knowledge
25 regarding the laboratory’s forensic and record-keeping procedures.
26 Further, Lawrence had expertise regarding Petitioner’s wounds based
27 not only on the autopsy report, but also by the doctor’s own
28 observations and interpretations of the photographs that had been
50
1 taken during the course of the autopsy.
(Id. at 382).3
It is true that Lawrence did testify regarding matters
2
3 reflected in the autopsy report, including the victim’s clothing,
4 height and weight, and his general health before death as well as
5 the presence of blunt force injuries consistent with a fight, a
6 total of seven gunshot wounds, glass fragments in the victim’s
7 forehead and elbow, and an absence of burn marks near the entrance
8 wounds.
(Id. at 387-389, 414-15.)
He testified that the report
9 indicated that the bullets hit the victim’s lungs, liver, adrenal
10 gland, spinal column, diaphragm, and aorta, causing significant
11 internal bleeding; and the cause of death was shock and hemorrhage
12 due to multiple gunshot wounds.
(Id. at 402-03, 420-23.)
Further,
13 the report indicated that some of the shots were fired in a downward
14 direction.
(Id. at 414-15.)
However, there was independent, non-hearsay evidence of the
15
16 autopsy procedures and the authenticity of the autopsy photographs.
17 A deputy sheriff testified he was present during the autopsy with
18 two members of the district attorney’s staff and an identification
19 officer.
The deputy confirmed the presence and location of the
20 bullet holes in the victim’s body and other injuries; the removal by
21 Dr. Schmunk, the pathologist performing the autopsy, of a bullet,
22 which the deputy identified, from the area of the victim’s chest
23 cavity; and the deputy’s direction to Officer Brown to take the
24 autopsy photographs (People’s exhs. nos. 9 through 26).
He
25 identified the matters (injuries and clothing, personal effects, and
26
27
28
3
Lawrence testified that the very purpose of documenting the investigation into
the cause and circumstances of the victim’s death was to permit another
pathologist to interpret the phenomena recorded and testify regarding them if
something happened to the examining pathologist. (Id.at 384-85.)
51
1 debris removed from the body) depicted in the photographs and
2 removed from the body.
(4 RT 748-49, 751-54, 756-59.)
Another law
3 enforcement officer who arrived at the scene before the victim died
4 testified to observing the victim lying face down on the sidewalk
5 and gasping for air; seeing bullet wounds and blood on his right
6 side, back, and chest; and learning of the victim’s death shortly
7 thereafter.
(2 RT 195-98, 202.)
Physical evidence consistent with the autopsy report was also
8
9 introduced with testimony as to the location of the evidence at the
10 scene, including the bullet fragment found in the victim’s shirt,
11 the shirt with seven bullet holes that were close to each other in a
12 pattern like a half-circle, six .380-caliber cartridge casings found
13 in a half-circle in the intersection on the south side of Kern
14 Street, a blood stain on the sidewalk and gutter behind the casings,
15 four bullet impact marks next to the corner to the left of the blood
16 stain, and associated bullet slugs.
(4 RT 880, 883, 886, 889, 895,
17 897-88; 5 RT 1020-25, 1030-35, 1040-47, 1050-57; 7 RT 1597.)
The
18 locations of the casings, bullet slugs, and bullet impact marks
19 indicated that the shooter was standing on the corner of Kern and P
20 Streets, facing north or northwest when he fired the gun, and that
21 he shot down at the ground. (5 RT 1022, 1077-78.)
Further, Lawrence also testified based on his observation and
22
23 interpretation of autopsy photographs that represented phenomena
4
24 that were consistent with matters reported in the report.
Lawrence
25 testified that the photographs showed abrasions on the victim’s arm,
26 blood or lacerations on his elbow, abrasions on his finger and
27
28
4
Lawrence had reviewed the photographs in order to prepare diagrams of the wounds.
(2 RT at 389.)
52
1 forearm, scratches on the backs of his finger and left hand, bruises
2 and abrasions on his head and face, tempered glass embedded in his
3 forehead, gunshot wounds to his abdomen and arm, a pattern of five
4 similar-looking gunshot entrance wounds with a similar direction in
5 the upper body grouped in an area twelve or fifteen inches in size,
6 four exit wounds in the left side of his body, one bullet recovered
7 in the soft tissues of the left flank, and lividity in his body.
8 RT 389-403.)
(2
Based on the autopsy photos, Dr. Lawrence opined that
9 the injuries were consistent with a fight or fall, the injuries to
10 the victim’s head and face were consistent with falling on a hard
11 object, and the gunshots to his abdomen were likely fired in rapid
12 succession with slight if any movement between the assailant and the
13 victim during the shooting; further, the shooter fired from
14 somewhere to the rear and right of the victim.
(2 RT 395, 398, 403,
15 409, 412, 419-20, 422-23.)
16
Here, independent of the autopsy report, there was evidence of
17 the nature and severity of the victim’s wounds from physical
18 evidence at the scene and from the testimony of other persons who
19 were actually present at the crime scene or at the autopsy.
20 Petitioner has not identified any material factual dispute with
21 respect to the injuries, the opinion that the victim died with five
22 gunshots, or the related physical evidence.
23
Petitioner has neither suggested what additional information
24 could have been elicited, nor shown that admission of the report had
25 any substantial or injurious influence or effect in determining the
26 jury’s verdict.
Accordingly, it will be recommended that
27 Petitioner’s claim that his rights under the Confrontation Clause
28 were violated be denied.
53
1
VIII.
Flight Instruction
2
Petitioner argues he suffered a violation of his right to a
3 jury trial and to due process guaranteed by the Sixth and Fourteenth
4 Amendments when the jury was instructed that Petitioner’s flight to
5 Mexico could be considered to demonstrate consciousness of guilt.
6 Petitioner argues that the instruction should not have been given
7 because there was no evidence that Petitioner knew he was suspected
8 or accused of the murder when he left for Mexico.
Petitioner argues
9 that the instruction allowed the jury to consider flight that was
10 wholly unrelated to the charges.
In addition to the federal
11 Constitution, Petitioner relies on state constitutional, statutory,
12 and case law in support of this contention.
13
(FAP, doc. 22, 56-59.)
As set forth above, Petitioner’s claim of instructional error
14 is not cognizable in this proceeding.
Further, Respondent contends
15 this claim was not exhausted in the state courts because in
16 presenting the issue to the CSC, Petitioner did not refer to a
17 specific constitutional guarantee, but rather only argued that it
18 “would create an impermissible inference in violation of the Federal
19 Constitution.”
20
(LD 10, 15; see id. at ii, 14-16.)
In the interest of economy, the Court will exercise its
21 discretion to forego an examination of the exhaustion issue and to
22 proceed directly to consider Respondent’s briefing to the effect
23 that even if Petitioner had exhausted state court remedies as to a
24 cognizable federal claim, the state court’s denial of the claim on
25 the merits was not objectively unreasonable.
26
27
A.
The State Court Decision
The CCA upheld the trial court’s decision to instruct the jury
28 regarding flight as follows:
54
1
2
3
4
5
6
7
8
B. Inclusion of a Flight Instruction in the Jury Charge was
Proper.
1. Facts.
The prosecution presented evidence that on July 13, 2004,
appellant spoke with his probation officer and told him he
wanted to go with his mother to visit an aunt in Arizona.
Based on this representation, the probation officer gave
appellant permission to leave California from July 16,
2004 to August 6, 2004. Appellant agreed to contact his
probation officer on August 6, 2004. Appellant did not go
to Arizona with his mother and never contacted his
probation officer again.
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
On July 14, 2004, the police attempted to locate appellant
at his mother's residence in Modesto and his father's
residence in Salinas. On July 15, 2004, a bench warrant
was issued for appellant's arrest. On July 20, 2004,
appellant's mother told the police that she did not know
where appellant was.
In September 2006, police officers confirmed that
appellant was living in Uruapan, Mexico. Federal agents
arrested appellant, who was using a different name.
Appellant was returned to the United States in custody.
Over defense objection, the court instructed on flight by
giving a modified version of CALCRIM No. 372. The court
omitted the portion of CALCRIM No. 372 concerning flight
after the defendant has been accused of committing the
charged crimes. As given, the instruction provided:
“If the defendant fled or tried to flee
immediately after the crime was committed, that
conduct may show that he was aware of his guilt.
If you conclude that the defendant fled or tried
to flee, it is up to you to decide the meaning
and importance of that conduct. However,
evidence that the defendant fled or tried to
flee cannot prove guilt by itself.”
2. The flight instruction was supported by the
evidence.
Appellant argues the flight instruction should not have
been given because he did not leave California immediately
after the murder. Also, he contends there is no proof of
55
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
guilty knowledge. Appellant asserts that when he left
California, he was “wholly unaware that he [was] under
suspicion of the charged crime[s].” Neither of these
contentions is persuasive.
“ ‘[A] flight instruction is proper whenever evidence of
the circumstances of defendant's departure from the crime
scene or his usual environs,... logically permits an
inference that his movement was motivated by guilty
knowledge.’ [Citation.]” (People v. Lucas (1995) 12
Cal.4th 415, 470, 48 Cal.Rptr.2d 525, 907 P.2d 373.)
Flight requires a purpose to avoid being observed or
arrested. A flight instruction does not assume that flight
was established. It leaves this factual determination and
its significance to the jury. The facts of each case
determine whether it is reasonable to infer that flight
shows consciousness of guilt. (People v. Mason (1991) 52
Cal.3d 909, 941, 277 Cal.Rptr. 166, 802 P.2d 950 (Mason).)
Our Supreme Court has rejected any “inflexible rules about
the required proximity between crime and flight.” (Mason,
supra, 52 Cal.3d at p. 941, 277 Cal.Rptr. 166, 802 P.2d
950 [four-week delay]; see also, e.g., People v. Santo
(1954) 43 Cal.2d 319, 329–330, 273 P.2d 249 [one-month
delay].) There is not a “defined temporal period within
which the flight must be commenced.” (People v. Carter
(2005) 36 Cal.4th 1114, 1182, 32 Cal.Rptr.3d 759, 117 P.3d
476 [delay of a few days].) Given the circumstances of
this case, appellant's sudden departure from the country
occurred in sufficient proximity to the murder to allow a
flight instruction. Appellant killed Neuman on the night
of July 10, 2004. On or about July 13, 2004, appellant
fled the area. “Common sense ... suggests that a guilty
person does not lose the desire to avoid apprehension for
offenses as grave as” murder after only a few days.
(Mason, supra, 52 Cal.3d at p. 941, 277 Cal.Rptr. 166, 802
P.2d 950.)
Also, the jury could reasonably infer that appellant's
flight to Mexico was motivated by guilty knowledge and
appellant's purpose was to avoid being questioned,
detained or arrested for shooting Neuman. Soon after
appellant killed Neuman, he lied to his probation officer
to obtain permission to leave the state for two weeks. It
reasonably can be inferred that appellant made up the
story about visiting an aunt so the probation officer
would not know that he had fled the country and alert
56
1
2
3
4
5
6
authorities when he failed to report to the probation
officer for their regularly scheduled meetings.
Accordingly, we conclude inclusion of the flight
instruction in the jury charge was proper and did not
infringe appellant's constitutional rights to a fair trial
and due process of law.
(LD 8, 29-31.)
B.
7
8
Analysis
Here, the modified version of CALCRIM 372 that was given
9 suggested to the jury that it was possible to conclude that
10
11
12
13
Petitioner fled and that his flight evinced consciousness of guilt,
but it did not require the conclusion.
The instruction did not
require the jury to consider the evidence or direct the finding of
14 any particular fact, and it permitted the jury to reject the
15 evidence or to accept it as true and determine the weight to which
16 it was entitled. Thus, the instruction was a “permissive inference
17
instruction,” a form of instruction that is generally acceptable
18
unless the conclusion the instruction suggests “is not one that
19
20 reason and common sense justify in light of proven facts before the
21 jury.”
22
23
24
25
26
Francis v. Franklin, 471 U.S. 307, 314-15 (1985).
Here, Petitioner’s deceptive representations to his parole
officer concerning his travel plans and destination as well as the
timing and secrecy of his departure to Mexico warranted the
conclusion that Petitioner fled as a result of his having shot the
27 victim and was motivated by a consciousness of guilt.
The fact that
28 Petitioner had not been formally accused of the crime did not
57
1 attenuate the otherwise rational inferences in view of additional
2 circumstances that strongly supported inferences of flight and
3
4
5
6
7
consciousness of guilt.
The evidence supported providing the
instruction, and the instruction respected the jury’s role as fact
finder.
More specifically, the Court is aware of no clearly established
8 federal law that prohibits the giving of the flight instruction in
9 the circumstances of Petitioner’s case.
10
11
12
13
The Ninth Circuit has
repeatedly confirmed the constitutionality of similar flight
instructions.
See, e.g., Karis v. Calderon, 283 F.3d 1117, 1131-32
(9th Cir. 2002) (instructing the jury on flight, even though the
14 trial court refused to advise the jury of possible reasons for
15 flight other than consciousness of guilt, was not fundamentally
16 unfair and did not violate due process); Houston v. Roe,
17
901, 910 (9th Cir. 1999) (instructing the jury on flight
18
unconstitutional because there is no clearly established
19
20 as determined by the Supreme Court that prohibits giving
177 F.3d
was not
federal law
a flight
21 instruction when the defendant admits committing the act charged);
22 McMillan v. Gomez, 19 F.3d 465, 469 (9th Cir. 1994) (instructing on
23
24
25
26
flight was proper even though there was an issue as to identity of
the person fleeing where the prosecution made a strong showing that
it was the defendant who fled); cf. Flores v. Stainer, no. 1:11-cv-
27 00190-BAM-HC, 2012 WL 3143874, *31-32 (E.D.Cal. Aug. 1, 2012)
28 (unpublished) (noting there is no clearly established federal law
58
1 that the flight instruction lessens the burden of proof in violation
2 of the Sixth and Fourteenth Amendments); United States v. Harrison,
3
4
5
6
585 F.3d 1155, 1159–60 (9th Cir. 2009) cert. den., Harrison v.
United States, 559 U.S. 958 (2010) (instructing on flight was not
erroneous under the circumstances where the instruction “permitted
7 the jury to draw a reasonable inference; it did not require an
8 unreasonable one”) and “did not require an unreasonable
9 [inference]”).
10
11
12
13
Indeed, the Ninth Circuit has recognized that where,
as here (LD 3, 11 RT 2533-36), the instruction is accompanied by the
standard instructions concerning the burden of proof, circumstantial
evidence, and the drawing of inferences, the instruction may benefit
14 defendants because it reminds jurors that evidence of flight is not,
15 by itself, sufficient to support a finding of guilt, and requires an
16 inference of consciousness of guilt only if flight is proven.
17
Karis, 283 F.3d at 1132; Harrison, 585 F.3d at 1160; McMillan, 19
18
F.3d at 469.
19
Considering the flight instruction in the context of the
20
21 evidence introduced at trial and the instructions as a whole, the
22 instruction did not render Petitioner’s trial fundamentally unfair.
23
24
25
26
Cf. Palma v. Harrington, No. CV 11–5728–JHN (E), 2012 WL 1570805,
*7–*10 (C.D.Cal. May 2, 2012) (unpublished).
Accordingly, it will
be recommended that Petitioner’s claim concerning the flight
27 instruction be denied.
28 ///
59
1
IX.
2
3
Ineffective Assistance of Counsel regarding Seating
of Law Enforcement Investigators and Witnesses at Trial
Petitioner argues he suffered a denial of his right to the
4 effective assistance of counsel when his counsel failed to object to
5 the seating of two witnesses (the prosecutor’s lead investigator and
6 gang expert) at the prosecutor’s table during trial. Petitioner
7
contends that the presence of the witnesses at the prosecutor’s side
8
throughout the trial gave an unfair advantage to the prosecution and
9
10 rendered his trial fundamentally unfair.
11
This claim was not addressed in the CCA’s decision on direct
12 appeal.
13
14
(LD 8.)
Petitioner raised the issue in his petition for
writ of habeas corpus filed in the CSC.
(LD 12, ground 1.)
The CSC
summarily denied the petition without any statement of reasoning or
15
16
17
authority.
(LD 13.)
A state court adjudicates a claim on the merits when it decides
18 the petitioner=s right to relief on the basis of the substance of the
19 constitutional claim raised, rather than denying the claim because
20 of a procedural or other rule precluding state court review of the
21 merits.
Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir. 2004).
A
22 state court need not issue an opinion on a claim for a claim to be
23 adjudicated on the merits within the meaning of ' 2254(d); rather, a
24 state court=s denial of an original petition for writ of habeas
25 corpus without a statement of reasons is presumed to have been
26 adjudicated on the merits in the absence of any indication or state
27 law procedural principles to the contrary.
28 131 S.Ct. at 784-85.
Harrington v. Richter,
The presumption may be overcome when there is
60
1 reason to think some other explanation for the state court=s decision
2 is more likely.
Id. at 785.
Where a petitioner has failed to show
3 that the California Supreme Court=s decision did not involve a
4 determination of the merits of his claim, a summary denial of relief
5 will thus be considered to be an adjudication on the merits.
6
Id.
Here, the CSC’s silent denial was an adjudication on the merits
7 within the meaning of ' 2254(d)(1) which warrants deferential review
8 under § 2254(d)(1).
9
Petitioner does not dispute the pertinent facts as summarized
10 by Respondent in the answer, which are as follows:
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
On January 8, 2009, the court heard pretrial motions in
limine. (1 CT 270.)
At the beginning of the hearing, the court asked the
prosecutor, Marlisa Ferreira, about the identity of the
man sitting next to her. Ferreira introduced the man as
Frolian Mariscal, an investigator with the district
attorney’s gang task force. Ferreira explained that
Mariscal would be the prosecution’s gang expert for the
trial, and her lead investigator was Marc Nuno, a
sheriff’s detective. Ferreira also explained that, at
different stages of the trial, the investigators would
change. (1 RT 101.)
During trial, an investigator, usually Nuno or Mariscal,
sat at the prosecution’s table, and the defense
investigator sat at the defense’s table. (1 RT 153; 2 RT
193; 3 RT 485, 612; 4 RT 734, 856; 5 RT 999, 1131; 6 RT
1231, 1356; 7 RT 1469, 1596; 8 RT 1726, 1845; 9 RT 1967,
2082; 10 RT 2236, 2361; 11 RT 2511, 2576.)
(Ans., doc. 28, 44:4-13.)
Further, it appears to be undisputed that
Officer Nuno testified to his processing of the crime scene and
additional investigation, including taking statements from co-
27 participants that identified Petitioner as the shooter and
28 attempting to locate Petitioner after he left the jurisdiction.
61
It
1 is also undisputed that Officer Mariscal provided extensive expert
2 testimony as a gang expert, including identifying Petitioner as an
3
4
5
6
7
active participant in a named criminal street gang and concluded
that the murder was committed for the benefit of a criminal street
gang.
Petitioner argues that the presence of the two officers
8 deprived him of an opportunity guaranteed by the Sixth Amendment to
9 determine his guilt solely based on the evidence introduced at
10 trial, as distinct from official suspicion, accusation, continued
11 custody, or other extraneous circumstances.
See, Holbrook v. Flynn,
12 475 U.S. 560, 567-72 (1986) (presence of four uniformed and armed
13 officers in the courtroom during trial was not an inherently
14 prejudicial practice, such as shackling, that should be permitted
15 only when justified by an essential state interest specific to each
16 trial because of the possibility of a wide range of inferences,
17 unrelated to the defendant, from the presence of the guards such
18 that there was no unacceptable risk of impermissible factors coming
19 into play).
Petitioner relies on Turner v. State of Louisiana, 372
20 U.S. 466 (1965), in which the Court held that the defendant had been
21 denied a fair trial before an impartial tribunal where two deputy
22 sheriffs who gave key testimony leading to the defendant's
23 conviction and whose credibility was in issue, had charge of jury
24 during the trial and had fraternized with them outside courtroom
25 during performance of their duties in what was described as “a
26 continuous and intimate association throughout a three-day trial-—an
27 association which gave these witnesses an opportunity... to renew
28 old friendships and make new acquaintances among the members of the
62
1 jury.”
Id. at 473.
The Court focused on the additional fact that
2 the relationship of the witnesses to the jurors was that of official
3 guardians, a position that naturally fostered the confidence of the
4 jurors in those guardians.
5
Id. at 474.
Under California law, where a party to an action is an entity
6 other than a natural person, the trial court has the discretion to
7 permit an officer or employee of the party to attend trial; in fact,
8 failure to permit a prosecutor’s investigator to remain in court has
9 been held to be an abuse of discretion.
See, Cal. Evid. Code §
10 777(a)-(c); People v. Gonzalez, 38 Cal.4th 932, 950-51 (2006).
11 Further, Petitioner does not dispute that a defense investigator sat
12 at the defense table during the trial.
13
Although Petitioner argues that the presence of the testifying
14 law enforcement officers was like wearing prison garb or similar to
15
16
17
18
the presence of supporters wearing buttons in favor of one side of
the case, he does not point to any improper conduct by the
investigators.
The fact that the investigators also testified in
19 various capacities does not necessarily relate to their presence in
20 the courtroom, which is permitted for a different purpose, namely,
21 for the assistance of the prosecutor.
22
The inferences to be drawn
from the presence of the officers were not so narrow and focused
23
24
25
that the presence of the officers raised any significant likelihood
of the intrusion of extraneous matters that would render their
26 presence inherently prejudicial.
27
The failure to make a motion that is legally meritless and thus
28 futile does not constitute conduct falling below reasonable
63
1 professional norms and does not result in prejudice.
2 Budge, 577 F.3d 1083, 1094 (9th Cir. 2009).
3
4
5
6
Matylinsky v.
Here, the presence of
the investigators was permitted under state law that was promulgated
pursuant to the state’s interest in defining criminal procedures.
The officers’ presence did not result in any inherent or
7 demonstrable prejudice to Petitioner.
Petitioner’s counsel was not
8 required under clearly established federal law to object to the
9 presence of the investigators, and the objection would not have been
10
11
12
13
successful under state law.
Thus, the state court’s denial of
Petitioner’s ineffective assistance claim based on the failure to
object was not contrary to, or an unreasonable application of,
14 clearly established federal law.
Accordingly, it will be
15 recommended that Petitioner’s ineffective assistance claim relating
16 to the presence of the witnesses at counsel’s table be denied.
17
Petitioner’s related claim that the presence of the
18
investigating officers constituted vouching by the prosecutor also
19
20 fails because the record does not reflect that the presence of the
21 officers constituted a representation by the prosecutor of the
22 credibility of the officers.
23
X.
24
Ineffective Assistance of Counsel in Failing to Object
to Autopsy Photographs
25
Petitioner argues that his counsel was ineffective for failing
26 to object to the admission of photographs of the victim taken during
27
the autopsy. Petitioner does not describe the precise matter
28
64
1 depicted in the photographs or otherwise catalogue any
2 characteristics of the photographs that he considers objectionable.
3
4
5
6
He instead lodges a blanket challenge to counsel’s failure to object
to any of the photographs on the ground that the photographs were
necessarily or inherently prejudicial as photographs of the
7 deceased.
Petitioner contends that the photographs injected an
8 impermissible outside influence into the jury’s determination of the
9 evidence.
10
11
12
13
Although this issue was not addressed in the CCA’s opinion on
direct appeal (LD 8), Petitioner raised it before the CSC in his
habeas petition (LD 12, printed p. 4), and the CSC summarily denied
14 the petition (LD 13).
The silent decision of the CSC constitutes an
15 adjudication on the merits.
16
17
A.
Background
Petitioner does not dispute or object to Respondent’s summary
18
19
20
21
22
23
24
25
26
27
28
of the pertinent proceedings set forth in the answer as follows:
In a motion in limine before the presentation of evidence,
the prosecution said it intended to introduce postmortem
photos of the victim, Neuman. (1 CT 219-220, 244-244-245.)
When the parties discussed this issue, the court said it
would admit the photos if there was nothing “unduly
offensive” about them. (1 RT 75.) The prosecutor said she
had removed any photos that seemed prejudicial, and that
the photos that she intended to introduce were taken after
Neuman’s body was cleaned. (1 RT 75-76.) Defense counsel
said he would examine the photos before deciding whether
to object, and he would object to any photos that were
“overboard.” (1 RT 76.) The court said it was prepared to
admit the photos even if they were “bloody” but was
inclined to sustain objections if there were too many
photos showing the same view. Id. Defense counsel said he
65
1
2
3
4
5
6
7
8
wanted to avoid any photos that had no relevance other
than “sensational value.” The prosecutor said she was not
offering any photos like that. (1 RT 77.)
Later, during the prosecution’s case-in-chief, the
prosecutor introduced the testimony of the pathologist,
Dr. Lawrence. (2 RT 379.) In his testimony, Dr. Lawrence
reviewed and discussed eighteen autopsy photos, which were
labeled as prosecution exhibits 9 through 26. The photos
depicted Neuman’s arm, hands, fingers, forehead, abdomen,
head, and face. Some of them showed his gunshot wounds. (2
RT 389-99.) After Dr. Lawrence finished testifying, the
court admitted the photos without objection. (2 RT 426.)
9 (Ans., doc. 28, 46.)
10
11
12
13
B.
Analysis
As previously set forth in connection with the confrontation
claim, the testimony of Dr. Lawrence revealed that the photographs
14 showed abrasions on the victim’s arm, blood or lacerations on his
15 elbow, abrasions on his finger and forearm, scratches on the backs
16 of his finger and left hand, bruises and abrasions on his head and
17
face, tempered glass embedded in his forehead, gunshot wounds to his
18
abdomen and arm, a pattern of five similar-looking gunshot entrance
19
20 wounds with a similar direction in the upper body grouped in an area
21 twelve or fifteen inches in size, four exit wounds in the left side
22 of his body, one bullet recovered in the soft tissues of the left
23
24
25
26
27
flank, and lividity in his body.
(2 RT 389-403.)
The photographs
were thus relevant to factual issues concerning the course of the
homicide and the identity of the perpetrator.
The photographs do not appear to have been sensational or
28 unnecessarily duplicative.
Although by their nature they were
66
1 unpleasant, there is no indication they were unduly inflammatory.
2 Further, the nature of the wounds and condition of the body of the
3
4
5
6
7
deceased were not matters extraneous to the jury’s consideration of
the evidence, but rather were part and parcel of the physical and
forensic evidence that the jury had to consider and evaluate.
The record supports a conclusion that defense counsel reviewed
8 the photographs and determined not to object to their admission.
On
9 the record before the Court, counsel could rationally have
10
11
12
13
determined that an objection based on Cal. Evid. Code § 352 based on
undue prejudice would have been unsuccessful in light of state law
generally supporting the introduction of autopsy photographs.
See
14 People v. Howard, 51 Cal.4th 15, 33 (2010), cert. den. Howard v.
15 California, 132 S.Ct. 213 (2011) (upholding against a due process
16 challenge the discretionary admission of autopsy photographs of
17
gunshot wounds to the head that were not particularly gruesome or
18
inflammatory and noting that autopsy photographs “are routinely
19
20 admitted to establish the nature and placement of the victim’s
21 wounds and to clarify the testimony of prosecution witnesses
22 regarding the crime scene and the autopsy, even if other evidence
23
24
25
26
may serve the same purposes”); People v. Loker, 44 Cal.4th 691, 70405 (2008) (upholding the admission of autopsy photographs in a first
degree murder case where the photographs were relevant to various
27 aspects of the prosecution's case, including theories of
28 premeditation and felony murder as well as the mode of the homicide,
67
1 the nature and placement of the fatal wounds, and illustration of
2 the testimony of the coroner and percipient witnesses; the court
3
4
5
6
noted that the prosecution was not obligated to “accept antiseptic
stipulations in lieu of photographic evidence”).
Here, because of
the strong relevance of the evidence and the absence of specific
7 indicia of excessively inflammatory content, the state court could
8 reasonably have concluded that admitting the autopsy photographs was
9 neither arbitrary nor prejudicial.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Further, there is no clearly established federal law
prohibiting the admission of autopsy photographs or other
prejudicial evidence.
A state court's procedural or evidentiary
ruling may be subject to federal habeas review if it violates
federal law, either by infringing upon a specific federal
constitutional or statutory provision or by admitting evidence so
arbitrary or prejudicial that is admission rendered the trial
fundamentally unfair and violated fundamental conceptions of
justice.
Perry v. New Hampshire, - U.S.-, 132 S.Ct. 716, 723
(2012); Windham v. Merkle, 163 F.3d 1092, 1103 (9th Cir. 1998);
Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th Cir. 1991).
The Supreme Court has not yet clearly ruled that the admission
of irrelevant or overtly prejudicial evidence constitutes a due
process violation sufficient to warrant issuance of a writ of habeas
corpus.
Estelle v. McGuire, 502 U.S. at 75 n.5 (declining to state
an opinion on whether a state law would violate the Due Process
Clause if it permitted use of prior crimes evidence to show
propensity to commit a charged crime).
Absent such clearly
established federal law, it cannot be concluded that a state court’s
68
1 evidentiary ruling was contrary to, or an unreasonable application
2 of, Supreme Court precedent under 28 U.S.C. § 2254(d)()1).
Holley
3 v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (citing Carey v.
4 Musladin, 549 U.S. 70, 77 (2006)); Larson v. Palmateer, 515 F.3d
5 1057, 1066 (9th Cir. 2008), cert. den., Larson v. Belleque, 555 U.S.
6 871 (2008) (denying a due process claim concerning the admission of
7 prior crimes evidence); Alberni v. McDaniel, 458 F.3d 860, 866-67
8 (9th Cir. 2006), cert. den., - U.S. -, 127 S.Ct. 1834 (2007)
9 (denying a due process claim concerning the admission of past
10 violent actions as propensity evidence in a second degree murder
11 case for want of a “clearly established” rule from the Supreme
12 Court);
Mejia v. Garcia, 534 F.3d 1036, 1046 (9th Cir. 2008), cert.
13 den., 555 U.S. 1117 (2009) (finding no unreasonable application of
14 clearly established Supreme Court precedent regarding either
15 propensity evidence or general due process principles where in a
16 case of rape, kidnapping, and assault against the Petitioner’s other
17 family members, the state court admitted evidence that the defendant
18 had committed uncharged sexual assaults of his daughter).
19
Here, Petitioner’s counsel could have exercised a rational,
20 professional, tactical judgment not to lodge a futile objection to
21 the photographs.
Further, in view of the strong evidence of
22 Petitioner’s guilt, it does not appear that Petitioner suffered
23 prejudice from the admission of the photographs.
It is, therefore,
24 concluded that the state court decision denying Petitioner’s
25 ineffective assistance claim was not contrary to, or an unreasonable
26 application of, clearly established federal law.
27
Accordingly, it will be recommended that Petitioner’s due
28 process claim relating to the admission of autopsy photographs be
69
1 denied.
2
3
4
XI.
Ineffective Assistance of Counsel for Failing to Object
to the Prosecutor’s Argument and Misconduct
Petitioner argues that his counsel was ineffective for failing
5 to object to what Petitioner characterizes as the prosecutor’s
6 vouching for witnesses and making improper remarks regarding
7
Petitioner’s guilt.
8
This claim was not addressed in the CCA’s decision on direct
9
10 appeal (LD 8), but Petitioner raised it before the CSC in his habeas
11 petition (LD 12, supp., 25-32), and the CSC summarily denied the
12 petition (LD 13).
13
14
The silent decision of the CSC constitutes an
adjudication on the merits.
Because Petitioner’s ineffective assistance claims depend in
15
16
part on the separate question of whether there was any objectionable
17 prosecutorial misconduct that required counsel to object, the Court
18 will review each of the specific allegations of misconduct before
19 addressing any related ineffective assistance of counsel.
20
A.
Prosecutorial Misconduct
21
22
23
It is clearly established federal law within the meaning of
§ 2254(d)(1) that a prosecutor’s improper remarks violate the
24 Constitution only if they so infect the trial with unfairness as to
25 make the resulting conviction a denial of due process.
Parker v.
26 Matthews, – U.S. -, 132 S.Ct. 2148, 2153 (2012) (per curiam); see,
27
Darden v. Wainwright, 477 U.S. 168, 181 (1986); Comer v. Schriro,
28
70
1 480 F.3d 960, 988 (9th Cir. 2007).
Prosecutorial misconduct
2 deprives the defendant of a fair trial as guaranteed by the Due
3
4
5
6
Process Clause if it prejudicially affects the substantial rights
of a defendant.
United States v. Yarbrough, 852 F.2d 1522, 1539
(9th Cir. 1988) (citing Smith v. Phillips, 455 U.S. 209, 219
7 (1982)).
However, the standard of review of claims concerning
8 prosecutorial misconduct in a § 2254 proceeding is the narrow
9 standard of due process, and not the broad exercise of supervisory
10
11
12
13
power; improper argument does not, per se, violate a defendant’s
constitutional rights.
Mancuso v. Olivarez, 292 F.3d 939, 957 (9th
Cir. 2002) (citing Thompson v. Borg, 74 F.3d 1571, 1576 (9th Cir.
14 1996)).
This Court must, therefore, determine whether the alleged
15 misconduct rendered a trial fundamentally unfair.
Darden v.
16 Wainwright, 477 U.S. at 183. The Court must also determine whether
17
the prosecutor’s actions constituted misconduct, and whether the
18
conduct violated Petitioner’s right to due process of law. Drayden
19
20 v. White, 232 F.3d 704, 713 (9th Cir. 2000).
21
Further, to grant habeas relief, this Court must conclude that
22 the state court’s rejection of the prosecutorial misconduct claim
23
24
25
26
“was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility
for fairminded disagreement.”
Parker v. Matthews, 132 S.Ct. at 2155
27 (quoting Harrington v. Richter, 131 S.Ct. at 767-87).
In addition,
28 the standard of Darden v. Wainwright is a very general one that
71
1 leaves courts with more leeway in reaching outcomes in case-by-case
2 determinations.
3
4
5
6
Parker v. Matthews, 132 S.Ct. at 2155 (quoting
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
In determining
whether remarks in argument rendered a trial fundamentally unfair, a
court must judge the remarks in the context of the entire proceeding
7 to determine whether the argument influenced the jury’s decision.
8 Boyde v. California, 494 U.S. 370, 385 (1990); Darden v. Wainwright,
9 477 U.S. at 179-82.
10
11
12
13
In Darden, the Court considered whether the
prosecutor manipulated or misstated evidence, whether specific
rights of the accused were implicated, the context of the remarks in
light of both parties’ arguments, the instructions given by the
14 trial court, and the weight of the evidence.
Darden, 477 U.S. at
15 179-82.
16
17
Prosecutors may argue reasonable inferences based on the
evidence, including that witnesses for one of the two sides are
18
19
lying.
United States v. Necoechea, 986 F.2d at 1276.
In contrast,
20 vouching consists of placing the prestige of the government behind a
21 witness through personal assurances of the witness’s veracity, or
22 suggesting that information not presented to the jury supports the
23
24
25
26
witness’s testimony.
1276 (9th Cir. 1993).
United States v. Necoechea, 986 F.2d 1273,
Vouching for the credibility of a witness or
expressing a personal opinion concerning the accused’s guilt can
27 pose two dangers.
First, it can convey the impression that evidence
28 known by the prosecutor but not presented to the jury supports the
72
1 charges, and thus it can jeopardize the defendant’s right to be
2 tried solely on the basis of the evidence presented to the jury.
3
4
5
6
United States v. Young, 470 U.S. 1, 18 (1985).
prosecutor’s opinion reflects the imprimatur of the government and
may induce the jury to trust the government’s judgment rather than
7 its own assessment of the evidence.
8
Second, the
Id. at 18-19.
When a prosecutor engages in argument that violates the ethical
9 principle that a lawyer not express a personal belief or opinion in
10
11
12
13
the truth or falsity of any testimony or evidence, the violation
must be viewed in context to determine whether the prosecutor’s
conduct affected the fairness of the trial.
Id. at 10-11.
To
14 determine whether prejudicial error occurred, a court must consider
15 the probable effect of the prosecutor’s argument on the jury’s
16 ability to judge the evidence fairly. Id. at 12. Vouching for a
17
witness’s credibility is more likely to be damaging where the
18
credibility of the witness is crucial. United States v. Edwards,
19
20 154 F.3d 915, 921 (9th Cir. 1998). Further, the Court is mindful
21 that the standard of Darden v. Wainwright is a very general one.
22
23
24
25
26
27
28
B.
Remark regarding Not Seeing the Victim
At the commencement of her argument, the prosecutor stated:
And a long time ago, two months ago, I introduced you
to a man named Ruben Sanchez Neuman. We haven’t seen him
since, have we? Maybe in some pictures, maybe he’s been
talked about a little bit. We haven’t seen him since.
And the reason we haven’t seen him since is because he fell
victim to the man sitting at the edge of the table, Ceasar
Perez. He was murdered. And that is why we’re here today.
73
1
2
3
(LD 3, ll RT 2577.)
Petitioner does not explain why this remark is allegedly
4 improper.
Argument that Petitioner was the perpetrator of the
5 murder was fair argument based on the evidence in the record.
6
7
Petitioner may be arguing that the remark was an appeal to
sympathy.
It is improper to appeal to the jurors’ emotions and
8
9
fears or to inform the jury that it has any duty other than the
10 weighing of the evidence.
11 1077 (9th Cir. 2009).
United States v. Nobari, 574 F.3d 1065,
However, the argument here was not overly
12 dramatic or emotionally charged; it was a matter-of-fact comment on
13
14
the state of the evidence pertaining to Petitioner’s behavior.
Accordingly, the state court could reasonably have concluded
15
16
that the argument was not improper or did not result in any
17 fundamental unfairness.
18
19
20
C.
Argument concerning Lack of Provocation and
Characterization of Petitioner as a Thug
Petitioner quotes from several pages of the prosecutor’s
21 argument but does not specify either the particular portion or
22 portions that are challenged as improper or the legal basis for the
23
24
25
26
claim of misconduct.
In the course of arguing that Petitioner was guilty of murder
with malice aforethought and not manslaughter, the prosecutor
27 contended that Petitioner could not have killed in the sudden heat
28 of passion because there was no legally adequate provocation or rash
74
1 action; to the contrary, Petitioner intended his act, as
2 demonstrated by his choices to draw his firearm and shoot
3
4
5
6
repeatedly.
(Id. at 2582-86.)
The prosecutor stated she wanted to
review the evidence of intent to kill.
“This was an unprovoked act.”
(Id. at 2586.)
She stated,
She then recounted the evidence of a
7 course of intentional and unprovoked conduct, including Petitioner’s
8 starting an argument earlier in the evening, telling Meza to stop
9 the truck, starting the fight with the victim and throwing the first
10
11
12
13
punch, encouraging others to participate, firing the whole clip into
the victim, telling Meza and Francisco in the truck after shooting
the victim “seven times for nothing” that “There’s one less of
14 them,” showing no remorse or concern for the victim after the event,
15 and fleeing the country.
(Id. at 2587-88.)
The prosecutor reviewed
16 the elements of murder; emphasized that to an ordinary, reasonable
17
person, the victim’s having worn red pants was not adequate
18
provocation for homicide; invited the jury to conclude that
19
20 petitioner’s conduct and flight evinced intent to kill and
21 consciousness of guilt; and noted that the murder benefited the gang
22 by instilling fear in people.
23
24
25
26
27
intimidate people.
commit them.
respect.”
The prosecutor concluded, “Murders
They make them fear the type of people that
And by doing that, thugs like Cesar Perez earn
(Id. at 2588.)
The prosecutor’s argument generally constituted fair comment on
28 the evidence.
The prosecutor’s characterization of Petitioner as a
75
1 “thug” was denigrating and reflected a judgment of Petitioner’s
2 conduct and character.
3
4
5
6
However, the Court notes that the defense
likewise acknowledged the accuracy of the prosecutor’s
characterization of the witnesses against Petitioner and referred to
them as lying gangbangers and street thugs.
(Id. at 2633.)
7 Further, the prosecutor’s statement was made in the course of
8 argument concerning whether the crime was gang-motivated and
9 benefited a criminal street gang; Petitioner’s concerted, violent
10
11
12
13
behavior and associations with gang members related to core issues
in the case.
The assessment followed the prosecutor’s review of the
considerable evidence of gang intimidation and violence.
The
14 prosecutor then stated, “Out there, you earn respect by intimidation
15 and fear and violence.”
(Id. at 2589.)
Although somewhat harsh,
16 the characterization was warranted by the evidence recounted by the
17
prosecutor and does not constitute an improper attack on Petitioner.
18
In any event, in light of the entire record, including
19
20 considerable evidence of gang violence, it does not appear that the
21 remarks would have influenced the jury’s verdict or resulted in any
22 fundamental unfairness.
23
24
25
26
27
28
The Court concludes that the state court could have reasonably
concluded that this portion of the argument did not violate
Petitioner’s right to due process of law.
D.
Argument regarding Witness Vicki Bozarth
Petitioner next quotes a portion of the prosecutor’s argument
76
1 concerning one of the many witnesses who provided corroborating
2 testimony concerning the arrival of Petitioner and his companions at
3
4
5
6
the intersection, the assault and shooting, and the departure of the
perpetrators.
In the course of a review of the testimony of a
jogger and neighbors who lived at or near the intersection, the
7 prosecutor referred to Vicki Bozarth, who lived in a house on the
8 corner where the incident happened.
(Id. at 2597-2603.)
The
9 prosecutor summarized Bozarth’s testimony that upon hearing a loud
10
11
12
13
crash and gunshots, she looked out and saw a wrecked bike and the
departing pickup truck with a male running after it and then jumping
into it.
The prosecutor argued that Marlena Phipps’ testimony
14 corroborated not only Bozarth’s testimony regarding the running man
15 and the truck, but also the testimony of Pena, Meza, and Felix that
16 Petitioner ran to the truck after he shot the victim, and Arellano’s
17
testimony that only Gomez and Petitioner were standing next to the
18
muzzle flashes and were the last two people at the scene. (Id. at
19
20 2603.) The prosecutor argued that the co-participants in the
21 assault, as members or loyal associates of a criminal street gang,
22 felt pressure to participate in the gang attack to avoid either
23
24
25
26
being seen as weak or being beaten themselves for not participating,
but they immediately ran when the shooting began.
She argued that
it was logical that the shooter was the last person to get into the
27 vehicle and that all the independent eyewitness testimony
28 corroborated or was consistent with Petitioner’s being the shooter
77
1 who ran to the truck as it was departing.
She argued that the man
2 Bozarth saw running to the truck after she heard gunshots was
3
4
5
6
Petitioner.
She noted that the independent eyewitness testimony of
the persons in the vicinity corroborated the co-participants’
identification of Petitioner as the shooter.
She emphasized that
7 the identification was actually made by the co-participants in the
8 crime.
She remarked, “You don’t get to pick them ladies and
9 gentlemen.
10
11
12
13
These cases come to you as they are.
(Id. at 2603-05.)
It is what it is.”
She reminded the jurors expressly of their duty
to listen to the accomplices who had entered into plea agreements
and to weigh their evidence against what others told them, to see if
14 it was corroborated and made sense, and then come to a conclusion.
15 (Id. at 2605.)
She stated that the four accomplices’ testimony had
16 to be corroborated by evidence provided by someone else that
17
connects the defendant to the crime, and pointed out that Ochoa and
18
Vizcarra were not accomplices. (Id. at 2606.)
19
Petitioner has not suggested how this argument was improper.
20
21 The prosecutor reviewed the key facts of the body of the crime from
22 the point of view of multiple witnesses, and she argued fair
23
24
25
26
inferences from the evidence.
The references to corroboration
fairly discriminated between the evidence from the accomplices on
the one hand, and that from the independent witnesses on the other.
27 The prosecutor did not argue that one accomplice corroborated the
28 others, but rather carefully summarized the independent testimonial
78
1 and physical evidence and reviewed how it was internally consistent
2 and further corroborated the statements and testimony of the
3
4
5
6
7
accomplices.
(Id. at 2605-17.)
She did not express inappropriate
opinions regarding the evidence, but rather summarized it and argued
the significance of the evidence.
The Court concludes that a state court could reasonably have
8 concluded there was no misconduct or no fundamental unfairness
9 resulting from this portion of the argument.
10
E.
11
Argument regarding Flight as Evincing Consciousness
of Guilt
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
Petitioner challenges the prosecutor’s argument on Petitioner’s
flight.
The prosecutor recounted Petitioner’s visit to his probation
officer two days before his scheduled reporting time and several
days after the shooting.
She explained Petitioner’s apparently
false story of going to Arizona as necessary to avoid issuance of a
warrant for his arrest by probation authorities for a failure to
report; a warrant would impede passage over the border to Mexico.
She noted that flight immediately after the commission of a crime is
not sufficient to establish guilt but could be considered, and
argued that Petitioner fled to Mexico which evinced his
consciousness of guilt of the shooting.
(Id. at 2621-23.)
She
summarized the evidence, argued that Petitioner committed the murder
to move up in the gang, and reminded the jury that the killing was
first degree murder because Petitioner stood over the victim, who
28
79
1 had already been beaten down on the ground, and fired seven shots,
2 causing the victim to scream in pain.
3
(Id. at 2624.)
The prosecutor did not offer any improper personal opinions or
4 otherwise vouch for the witnesses, but instead commented on the
5 state of the evidence in the record.
To the extent that she
6 referred to Petitioner’s firing seven shots into the vulnerable
7 victim and causing the victim to scream, the prosecutor’s argument
8 was supported by the evidence.
9
The state court could reasonably have determined that the
10 account of Petitioner’s conduct was permissible comment on the
11 evidence and not an impermissible appeal to passion or sympathy
12 because the comment did no more than summarize the facts of the
13 brutal offense.
The state court could reasonably have concluded
14 there was no fundamentally unfair conduct.
F.
15
16
Argument regarding Witness Daniel Britt
Petitioner next objects to the prosecutor’s rebuttal argument
17 concerning witness Daniel Britt, who testified that while in
18 custody, Sergio Felix told Britt that Arellano was the killer.
19
In argument, the defense reviewed the testimony of the
20 accomplices and the eyewitnesses and recounted the timeline of the
21 emergence of the accomplices’ statements.
Defense counsel argued
22 that the accomplices had strong personal interests to lie, and
23 Vizcarra’s strong feelings for Pena rendered her an unreliable
24 witness.
The defense argued that Arellano was the killer because
25 unlike Petitioner, who was corpulent, Arellano was thin and admitted
26 that he wore a black shirt; the jogger, Ms. Lominario, testified
27 that the shooter got into a Jeep; and Britt testified to Felix’s
28
80
1 extra-judicial statement that it was Arellano who killed Neuman.
2 (LD 3, 11 RT 2625-66.)
3
In response, the prosecutor argued that the defense’s story of
4 Petitioner being framed by gang members was untenable because
5 Petitioner alone fled the country, demonstrating consciousness of
6 guilt; Luis Meza, who was not arrested with everyone else, could not
7 have made up the details he knew; and Daniel Britt was not a
8 credible person.
She argued that Lominario was not certain that the
9 shooter got back into the Jeep, and that Lominario’s testimony was
10 otherwise consistent with that of the other witnesses.
The
11 prosecutor stated, “Daniel Britt is the only person who testified
12 before you that the shooter was someone other than Cesar Perez, and
13 Daniel Britt wasn’t there.”
(Id. at 2671, 2667-71.)
She contrasted
14 his testimony with that of Pena, Meza, Felix, and Arellano, who were
15 present and were percipient witnesses.
(Id. at 2671-72.)
16 The prosecutor argued fair inferences from the record; the question
17 of which witnesses to credit was within the jury’s province.
18
Petitioner has not even suggested, let alone shown, how these
19 remarks could have resulted in unfairness in the proceedings.
The
20 Court, therefore, concludes that the state court could have
21 reasonably determined no misconduct occurred or no fundamental
22 unfairness resulted from the argument.
23
24
G.
The Prosecutor’s Summation in Rebuttal
Again, without explanation of the precise basis on which
25 Petitioner rests his claim of misconduct, Petitioner quotes a long
26 portion of the very last part of the prosecutor’s rebuttal argument.
27
The prosecutor continued with her rebuttal, emphasizing that
28 the testimony of Vicki Bozarth and Aolani Smith, who both came out
81
1 after the shots were fired and saw only one vehicle (the truck), was
2 consistent with Pena’s testimony that the Jeep left the scene
3 earlier than the truck.
She noted the accomplices’ testimony that
4 Petitioner was the shooter was corroborated by Marlena Phipps, who
5 was certain that the man who started the fight came from the pickup
6 truck, and by physical evidence, such as the beer cans near where
7 the Jeep was; further, Vizcarra was credible and was not biased by
8 love for Pena because she had moved on with her life and had a baby
9 with someone else.
(Id. at 2672-73.)
The prosecutor reviewed
10 Meza’s testimony in detail and reviewed evidence of gang activity.
11 She then embarked on a final summation of the evidence of the
12 criminal transaction, beginning with the victim’s peaceful act of
13 walking with his bicycle three blocks from home, continuing with a
14 detailed recounting of the gang’s aggression led by Petitioner to
15 the point at which the victim was on the ground and the others
16 stomped on him and Petitioner “unloaded five rounds into Joey’s
17 back.”
(Id. at 2685, 2674-85.)
The prosecutor referred to the
18 victim’s screaming in pain and his dying at the scene; she argued
19 that the shooter’s pursuit of the truck was corroborated by Vicki
20 Bozarth, Meza, and Gomez.
(Id. at 2685-86.)
The prosecutor
21 concluded:
22
23
24
25
26
27
28
And you know how you know that he meant to do this
and that he wanted to do this and that he’s not sorry
one bit that this happened? Because what he says next,
well, there is now one less of them. And he’s right.
There is one less Norteno gang member in the world, but
he had a name. His name was Joey. He had a family and
a life and he didn’t deserve to die like that.
One thing that I agree with [defense counsel] about is
this is your community and I trust you’re going to do the
right thing.
82
His name was Joey and he died on July 10th of 2004.
You decide.
1
2
3
(Id. at 2586.)
With respect to the vivid recounting of the homicide, the
4
5 prosecutor’s argument was not unduly inflammatory.
The victim’s
6 suffering was not improperly emphasized. Emphasis on the victim’s
7
individuality and behavior related to core issues of lack of
8
adequate provocation and the presence of the requisite gang
9
10 motivation.
The prosecutor implied urging of the jury to do “the right
11
12 thing” was made in the context of highlighting the viciousness of
13
14
the gang violence that she had just described in detail.
The
prosecutor’s appeal was made in the course of her final review of
15
16
the evidence, and not in a manner reasonably understood as referring
17 to extra-record matters or as inviting the jury to perform any duty
18 other than the weighing of the evidence.
19
20
In summary, a state court could reasonably have concluded that
it was not reasonably likely that a rational juror would
21
22
23
misunderstand this argument as an inappropriate appeal to passion,
prejudice, or other extra-record matters.
Thus, the Court concludes
24 that this portion of the argument has not been shown to constitute
25 prejudicial misconduct or to have resulted in any unfairness.
26 ///
27
///
28
83
1
2
3
4
5
6
H.
Additional Conference concerning Argument
Finally, Petitioner quotes a portion of the transcript of a
post-argument conference, held outside the presence of the jury,
regarding the objections made during the argument.
Petitioner’s counsel stated that he objected to the
7 prosecutor’s comment that the plea of Mr. Meza “was not to any gang
8 enhancement,” which was vouching for the witness to the effect that
9 he was not in fact a gang member where the evidence was disputed.
10
11
12
13
(Id. at 2690.)
The prosecutor had reviewed the gang activity and
status of the accomplices, acknowledged that Meza was a “banger
too,” but noted that he was different because he had simply grown up
14 in the neighborhood but was not “hardcore....”
(Id. at 2612.)
She
15 argued that he was different: he had a job and worked during the
16 whole period, and he had no gang tattoos, prior arrests, or prior
17
contact with law enforcement. He pled guilty to kicking the victim
18
and thereby committing assault with force likely to cause great
19
20 bodily injury, receiving a year in jail. The prosecutor stated,
21 “Now, if you’ll notice, he did not plead to the gang enhancement.”
22 (Id. at 2613.)
23
24
25
26
27
The trial court stated that it had overruled the
objection to this argument because the court did not consider it to
have been harkening the jury to consider that Meza “didn’t have to
plead to anything that was gang.”
(Id.)
The prosecutor’s reference was to the terms of the plea
28 bargain, a subject central to the credibility of the pleading
84
1 accomplices.
The prosecutor did not imply that there was extra-
2 record evidence that was determinative or even considered in the
3
4
5
6
plea bargaining process.
Likewise, she did not express her personal
opinion with respect to any part of the plea bargaining process or
the credibility of the witness.
7 of the plea bargain.
Instead, she referred to the terms
The substance and form of her argument did not
8 constitute impermissible vouching for a witness, but rather
9 permissible marshaling of the facts.
10
11
12
13
14
The state court could
reasonably have concluded that no misconduct had occurred, or that
it was not likely that a jury would have understood her comments as
vouching.
The next matter raised in the post-argument conference was the
15 defense’s concern with comparison of the demeanor of the Petitioner
16 with that of Meza. Defense counsel argued that it improperly sought
17
the jury’s consideration of Petitioner’s demeanor during the trial,
18
which was a matter that was not evidence.
19
The prosecutor had read or summarized in detail Meza’s
20
21 testimony about Petitioner’s post-shooting statement that “there’s
22 one less of them” and then had asked Meza about Petitioner’s
23
24
25
26
demeanor earlier in the evening.
(Id. at 2681.)
The trial court
overruled the objection on the ground that the comparison had been
between Petitioner’s demeanor first before, and then at the time of,
27 the attack on the victim.
(Id. at 2690-92.)
28
85
1
No comparison with Petitioner’s in-court behavior is brought to
2 this Court’s attention.
3
4
5
6
The trial court could reasonably have
concluded that no rational juror would have understood the argument
as an inappropriate comparison with matters outside the body of the
evidence before the jury.
In any event, the jury was properly
7 instructed that the lawyers’ comments and argument were not evidence
8 (11 RT 2534), and thus to the extent that any isolated instanced of
9 misconduct occurred, any harmful effect was cured.
10
11
12
13
14
Roe, 230 F.3d 1097, 1107 (9th Cir. 2000).
Sassounian v.
Arguments of counsel
carry less weight with a jury than do instructions from the court.
Boyde v. California, 494 U.S. at 384-85.
In sum, the evidence against the Petitioner was strong and was
15 from multiple sources.
The state court could reasonably have
16 concluded that any remark concerning the defendant’s demeanor was
17
not understood in a way that violated the Constitution and did not
18
render the proceedings fundamentally unfair.
19
I. Ineffective Assistance of Counsel
20
21
As the foregoing analysis of Petitioner’s contentions
22 concerning alleged prosecutorial misconduct in argument reflects,
23
24
25
26
the state court could reasonably have concluded that the prosecutor
did not engage in prejudicial misconduct in argument that rendered
Petitioner’s trial fundamentally unfair.
Thus, a fairminded jurist
27 could conclude that Petitioner’s counsel exercised a reasonable
28 tactical judgment not to object further to the prosecutor’s
86
1 arguments and thus did not engage in conduct below professional
2 standards of competence.
3
4
5
6
Accordingly, it will be recommended that Petitioner’s claim or
claims of ineffective assistance of counsel for failing to object to
misconduct in argument should be denied.
7
XII.
Insufficient Evidence of Firearm Enhancements
8
Petitioner alleges he suffered a violation of his right to due
9 process of law because the evidence was insufficient to support the
10
11
12
13
findings that he 1) discharged a firearm and caused death within the
meaning of Cal. Pen. Code § 12022.53(d), and 2) was armed with a
firearm during the commission of the offense within the meaning of
14 Cal. Pen. Code § 12022(a).
15
This claim was not addressed by the CCA, but Petitioner raised
16 it before the CSC in his petition for writ of habeas corpus. (LD
17
12, ground 4.) It has not been shown that the CSC’s silent denial
18
was not an adjudication on the merits.
19
To determine whether a conviction violates the constitutional
20
21 guarantees of due process of law because of insufficient evidence, a
22 federal court ruling on a petition for writ of habeas corpus must
23
24
25
26
determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.
Jackson
v. Virginia, 443 U.S. 307, 319, 20-21 (1979); Windham v. Merkle, 163
27 F.3d 1092, 1101 (9th Cir. 1998); Jones v. Wood, 114 F.3d 1002, 1008
28 (9th Cir. 1997).
87
All evidence must be considered in the light that is the most
1
2 favorable to the prosecution.
3
4
5
6
F.3d at 1008.
Jackson, 443 U.S. at 319; Jones, 114
It is the trier of fact’s responsibility to resolve
conflicting testimony, weigh evidence, and draw reasonable
inferences from the facts; thus, it must be assumed that the trier
7 resolved all conflicts in a manner that supports the verdict.
8 Jackson v. Virginia, 443 U.S. at 319; Jones, 114 F.3d at 1008.
The
9 relevant inquiry is not whether the evidence excludes every
10
11
12
13
hypothesis except guilt, but rather whether the jury could
reasonably arrive at its verdict.
455, 458 (9th Cir. 1991).
United States v. Mares, 940 F.2d
Circumstantial evidence and the
14 inferences reasonably drawn therefrom can be sufficient to prove any
15 fact and to sustain a conviction, although mere suspicion or
16 speculation does not rise to the level of sufficient evidence.
17
United States v. Lennick, 18 F.3d 814, 820 (9th Cir. 1994); United
18
States v. Stauffer, 922 F.2d 508, 514 (9th Cir. 1990); see, Jones v.
19
20 Wood, 207 F.3d at 563. The court must base its determination of the
21 sufficiency of the evidence on a review of the record.
Jackson at
22 324.
23
24
25
26
The Jackson standard must be applied with reference to the
substantive elements of the criminal offense as defined by state
law.
Jackson, 443 U.S. at 324 n.16; Windham, 163 F.3d at 1101.
27 However, the minimum amount of evidence that the Due Process Clause
28 requires to prove an offense is purely a matter of federal law.
88
1 Coleman v. Johnson, - U.S. -, 132 S.Ct. 2060, 2064 (2012) (per
2 curiam).
3
4
5
6
For example, under Jackson, juries have broad discretion
to decide what inferences to draw and are required only to draw
reasonable inferences from basic facts to ultimate facts.
Id.
Further, under the AEDPA, federal courts must apply the
7 standards of Jackson with an additional layer of deference.
Coleman
8 v. Johnson, 132 S.Ct.at 2062; Juan H. v. Allen, 408 F.3d 1262, 1274
9 (9th Cir. 2005).
10
11
12
13
This Court thus asks whether the state court
decision being reviewed reflected an objectively unreasonable
application of the Jackson standards to the facts of the case.
Coleman v. Johnson, 132 S.Ct. at 2062; Juan H. v. Allen, 408 F.3d at
14 1275.
The determination of the state court of last review on a
15 question of the sufficiency of the evidence is entitled to
16 considerable deference under 28 U.S.C. § 2254(d). Coleman v.
17
Johnson, 132 S.Ct. at 2065.
18
Petitioner argues that the evidence is insufficient because
19
20 Pena initially reported that Arellano was the shooter, Arellano
21 admitted having worn black clothing, and Daniel Britt testified that
22 he was told that Arellano was the shooter.
23
24
25
26
Petitioner further
contends that the remaining evidence that supports a conclusion that
Petitioner was the shooter was unreliable.
The trier of fact was presented with conflicting evidence
27 concerning the identity of the shooter.
It was within the jury’s
28 province to consider the testimony and evidence, including the
89
1 circumstances that bore on the credibility of the witnesses, and to
2 resolve any conflicts in the evidence.
3
4
5
6
The judgment is supported by
evidence from the accomplices as well as from disinterested,
independent witnesses and physical evidence; the record does not
reflect that the evidence against Petitioner was inherently
7 unreliable.
In its review of the petition, this Court must conclude
8 that the trier of fact resolved all conflicts in favor of the
9 judgment.
10
11
12
13
A rational trier of fact could have found beyond a
reasonable doubt that Petitioner was armed with a firearm during the
commission of the offense, discharged a firearm, and thereby caused
the death of the victim.
Therefore, the state court decision rejecting Petitioner’s
14
15 challenge to the sufficiency of the evidence was an objectively
16 reasonable application of the Jackson standard. The state court’s
17
decision was not contrary to, or an unreasonable application of,
18
clearly established federal law within the meaning of § 2254(d)(1).
19
20 Accordingly, it will be recommended that Petitioner’s claim or
21 claims concerning the sufficiency of the evidence to support the
22 firearms findings be denied.
23
24
25
26
In sum, it will be recommended that insofar as Petitioner
raises state law claims, the petition be dismissed; the remainder of
the petition be denied; and judgment be entered for Respondent.
27 ///
28 ///
90
1
XIII.
2
3
Motion for Expansion of the Record and for an
Evidentiary Hearing
On December 12, 2012, Petitioner filed a motion to expand the
4 record to include declarations from Alvarado Arellano and
5 Petitioner, and for an evidentiary hearing on all the claims raised
6 in this proceeding and on the major issues of disputed fact
7
pertinent to Petitioner’s guilt that have already been determined by
8
the jury. Respondent filed opposition to the motion on December 31,
9
10 2012. Petitioner did not file a reply.
11
In his declaration, Petitioner denies he shot or killed the
12 victim, that he participated in a criminal street gang, or that he
13
14
ever made statements indicating that he had done so.
Further,
Petitioner declares he knows the accomplices made up false evidence
15
16
against him to obtain plea bargains.
(Doc. 37, 8-9.)
In his
17 declaration, Arellano, who identifies himself as an inmate of the
18 Kern Valley State Prison, states Petitioner did not shoot the victim
19 and that someone else, who is not identified, did.
20
(Id. at 10.)
The decision to grant an evidentiary hearing is generally a
21
22
23
matter left to the sound discretion of the district courts.
28
U.S.C. § 2254; Habeas Rule 8(a); Schriro v. Landrigan, 550 U.S. 465,
24 473 (2007).
To obtain an evidentiary hearing in federal court under
25 the AEDPA, a petitioner must allege a colorable claim by alleging
26 disputed facts which, if proved, would entitle him to relief.
27
Schriro v. Landrigan, 550 U.S. at 474.
28
91
1
The determination of entitlement to relief is, in turn, is
2 limited by 28 U.S.C. § 2254(d)(1), which requires that to obtain
3
4
5
6
relief with respect to a claim adjudicated on the merits in state
court, the adjudication must result in a decision that was either
contrary to, or an unreasonable application of, clearly established
7 federal law.
Schriro v. Landrigan, 550 U.S. at 474.
Further, in
8 analyzing a claim pursuant to § 2254(d)(1), a federal court is
9 limited to the record that was before the state court that
10
11
12
13
adjudicated the claim on the merits.
Cullen v. Pinholster, 131
S.Ct. at 1398.
Thus, when a state court record precludes habeas relief under
14 the limitations set forth in § 2254(d), a district court is not
15 required to hold an evidentiary hearing.
Cullen v. Pinholster, 131
16 S.Ct. at 1399 (citing Schriro v. Landrigan, 550 U.S. at 474). An
17
evidentiary hearing may be granted with respect to a claim
18
adjudicated on the merits in state court where the petitioner
19
20 satisfies § 2254(d)(1), or where § 2254(d)(1) does not apply, such
21 as where the claim was not adjudicated on the merits in state court.
22 Cullen v. Pinholster, 131 S.Ct. at 1398, 1400-01.
23
24
25
26
Here, Petitioner has not shown that the state court decisions
on his claims were contrary to or unreasonably applied clearly
established federal law within the meaning of 28 U.S.C.
27 § 2254(d)(1).
Likewise, he has not demonstrated that the state
28 court decisions were based on any unreasonable determination of the
92
1 facts in light of the evidence presented in the state court
2 proceedings within the meaning of 28 U.S.C. § 2254(d)(2).
3
4
5
6
7
Further,
reference to the petition for writ of habeas corpus filed in the
California Supreme Court (LD 12) shows that the declarations of
Petitioner and Arellano were not presented to the CSC for review.
Accordingly, it will be recommended that this Court deny the
8 motion to expand the record and grant an evidentiary hearing.
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
XIV.
Certificate of Appealability
Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the Court of Appeals
from the final order in a habeas proceeding in which the detention
complained of arises out of process issued by a state court.
28
U.S.C. ' 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336
(2003).
A district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.
Rule 11(a) of the Rules Governing Section 2254 Cases.
A certificate of appealability may issue only if the applicant
makes a substantial showing of the denial of a constitutional right.
' 2253(c)(2).
Under this standard, a petitioner must show that
reasonable jurists could debate whether the petition should have
been resolved in a different manner or that the issues presented
were adequate to deserve encouragement to proceed further.
Miller-
El v. Cockrell, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S.
473, 484 (2000)).
A certificate should issue if the Petitioner
shows that jurists of reason would find it debatable whether: (1)
the petition states a valid claim of the denial of a constitutional
28
93
1 right, and (2) the district court was correct in any procedural
2 ruling.
3
Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
In determining this issue, a court conducts an overview of the
4 claims in the habeas petition, generally assesses their merits, and
5 determines whether the resolution was debatable among jurists of
6 reason or wrong.
Id.
An applicant must show more than an absence
7 of frivolity or the existence of mere good faith; however, the
8 applicant need not show that the appeal will succeed.
Miller-El v.
9 Cockrell, 537 U.S. at 338.
10
Here, it does not appear that reasonable jurists could debate
11 whether the petition should have been resolved in a different
12 manner.
Petitioner has not made a substantial showing of the denial
13 of a constitutional right.
14
Accordingly, it will be recommended that the Court decline to
15 issue a certificate of appealability.
16
17
18
19
20
XV.
Recommendations
In accordance with the foregoing analysis, it is RECOMMENDED
that:
1)
Insofar as Petitioner raises claims based on state law, the
21 second amended petition for writ of habeas corpus be DISMISSED; and
22
23
2)
The remainder of the second amended petition for writ of
habeas corpus be DENIED; and
24
25
26
3)
The motion for expansion of the record and for an
evidentiary hearing be DENIED; and
27
4)
Judgment be ENTERED for Respondent; and
28
5)
The Court DECLINE to issue a certificate of appealability.
94
1
These findings and recommendations are submitted to the United
2 States District Court Judge assigned to the case, pursuant to the
3 provisions of 28 U.S.C. ' 636 (b)(1)(B) and Rule 304 of the Local
4 Rules of Practice for the United States District Court, Eastern
5 District of California.
Within thirty (30) days after being served
6 with a copy, any party may file written objections with the Court
7 and serve a copy on all parties.
Such a document should be
8 captioned AObjections to Magistrate Judge=s Findings and
9 Recommendations.@
Replies to the objections shall be served and
10 filed within fourteen (14) days (plus three (3) days if served by
11 mail) after service of the objections.
The Court will then review
12 the Magistrate Judge=s ruling pursuant to 28 U.S.C. ' 636 (b)(1)(C).
13 The parties are advised that failure to file objections within the
14 specified time may waive the right to appeal the District Court’s
15 order.
Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
16
17
18 IT IS SO ORDERED.
19
20
Dated:
May 22, 2014
/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
21
22
23
24
25
26
27
28
95
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