Wolfe v. Perry
Filing
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FINDINGS and RECOMMENDATION Recommending Denial of 1 Petition for Writ of Habeas Corpus, signed by Magistrate Judge Stanley A. Boone on 5/6/16. Referred to Judge Drozd; 30-Day Deadline. (Verduzco, M)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ERIC THOMAS WOLFE,
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Case No. 1:15-cv-00957-DAD-SAB-HC
Petitioner,
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FINDINGS AND RECOMMENDATION
RECOMMENDING DENIAL OF PETITION
FOR WRIT OF HABEAS CORPUS
v.
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S. PEERY,
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Respondent.
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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus
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17 pursuant to 28 U.S.C. § 2254.
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I.
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BACKGROUND
In 2011, Petitioner was convicted after a jury trial in the Tulare County Superior Court of
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21 extortion, burglary, home invasion robbery, battery, two counts of dissuading a witness or
22 victim, participation in a criminal street gang, and receiving stolen property. The jury also found
23 true the special allegation that the offenses were committed for the benefit of a street gang. In
24 bifurcated proceedings, the court found prior strike and serious felony special allegations to be
25 true. On December 13, 2011, Petitioner was sentenced to a total of thirty years to life for the
26 home invasion robbery. The sentences on the remaining counts and special allegations were
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27 imposed concurrently or were stayed. (ECF No. 14 at 57–58).
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Page numbers refer to the ECF page numbers stamped at the top of the page.
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On October 7, 2013, the California Court of Appeal, Fifth Appellate District, reversed the
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2 conviction for receiving stolen property. The case was remanded for resentencing on the
3 extortion and dissuading a witness or victim offenses. (ECF No. 14 at 120). Petitioner filed a
4 petition for review in the California Supreme Court. (LD 2 26). On February 11, 2014, the
5 California Supreme Court denied Petitioner‘s petition for review. (LD 27).
On April 30, 2014, Petitioner was resentenced by the Tulare County Superior Court to an
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7 imprisonment term of thirty-five years to life. (LD 28). On April 23, 2015, Petitioner filed a state
8 habeas petition in the California Supreme Court. (LD 29). On July 15, 2015, the California
9 Supreme Court denied the petition. (LD 30).
On June 25, 2015, Petitioner filed the instant federal petition for writ of habeas corpus.
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11 (ECF No. 1). Therein, Petitioner raises the following claims for relief: (1) the trial court
12 erroneously instructed the jury with an inapplicable portion of the witness credibility instruction;
13 (2) the trial court erroneously instructed the jury with an inapplicable instruction regarding false
14 or misleading statements and consciousness of guilt; (3) there was insufficient evidence to
15 support the extortion conviction; and (4) juror misconduct violated Petitioner‘s right to a trial by
16 unbiased, impartial jurors. On October 13, 2015, Respondent filed an answer. (ECF No. 14).
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II.
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STATEMENT OF FACTS3
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Facts Specific to the January 2010 Incident
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Eric Dahlberg lived across the street from his friend Roy Gomez in Tulare. On
January 31, 2010, Dahlberg called 911 after he became concerned about a number
of people he observed at Gomez‘s home. He had never seen these six or so men at
his neighbor‘s home before. Gomez and the others were standing near the
driveway and appeared to be talking. But then Gomez started backing up and the
others were getting closer, ―kind of circling around him.‖ Dahlberg thought it was
a ―little suspicious.‖ Gomez had backed up to the garage door and put his hands
up. Shortly thereafter, Gomez‘s cousin came out from inside the house.
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Although Dahlberg could not hear what was being said, he could see clearly. He
focused on one person who appeared older and ―darker.‖ That individual stood
out and seemed like he was telling the others what to do. He made lots of hand
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―LD‖ refers to the documents lodged by Respondent on October 13, 2015. (ECF No. 15).
The Court relies on the California Court of Appeal‘s opinion, issued on October 7, 2013 and modified on
November 5, 2013, for this summary of the facts of the crime. See Vasquez v. Kirkland, 572 F.3d 1029, 1031 n.1
(9th Cir. 2009) (―We rely on the state appellate court‘s decision for our summary of the facts of the crime.‖).
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gestures: when he pointed to the curb, two individuals went to the curb; when he
pointed to the house, everyone else went inside. That individual also used his cell
phone a couple of times. The individual ―was in Roy‘s face,‖ while the others
were behind him. Dahlberg did not witness any physical altercation.
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By the time the police arrived in response to his call, Dahlberg was at the back of
his house. Because he could not clearly see individual faces, he could not identify
anyone other than Gomez and his cousin. Later, Gomez came to Dahlberg‘s door.
He was ―breathing hard‖ and was ―acting shocked.‖
Another neighbor, Richard Hernandez, was outside working on his truck that
same day. He recalled seeing ―a bunch of guys‖ pull up in a couple of cars. He
figured they were friends of Gomez‘s. It was not unusual until he noticed the
group had Gomez backed up against the garage door. There were six or seven
men, most of whom were young. Two were older and one stood out because he
was the only one talking and everyone else surrounded him. Hernandez could not
decide if that man was African–American or a dark complexioned Hispanic. That
man was loud, ―running his mouth,‖ yelling and screaming.
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Hernandez became concerned because Gomez was standing against the garage
and everyone was ―surrounding him.‖ They no longer looked like friends.
Although he did not talk to Gomez‘s cousin much, he knew who he was and he
recognized him when he came outside. The group's focus then shifted to Gomez‘s
cousin and they all went inside. About 10 minutes later, the police arrived.
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When Hernandez gave his statement to police, his memory was fresh; he told the
truth. He told Detective Jesus Guzman that the darker man had told Gomez‘s
cousin, ―This doesn't concern you. Get out of here.‖ He recalled seeing the darker
man on his cell phone; he wore a red hat. Gomez‘s cousin told the darker man that
he did not have much money, but that he could take what he had. Hernandez
recalled telling the detective that he saw ―a larger white guy try to strike‖ Gomez.
In January 2010, Norteño gang member A.T. was living with his aunt, uncle, and
cousin Roy Gomez in Tulare. In response to a midmorning knock, A.T. answered
the door to find a man he believed to be John Delgado [who was actually Steven
Delgado] asking to speak with his cousin. He knew who Delgado was because
Delgado had visited Gomez in the past. A.T. noted there were other people
waiting outside near a white truck and a white car, but he did not recognize the
others. Gomez stepped outside with Delgado.
A.T. resumed speaking on the telephone with his girlfriend. Eventually, he heard
people talking loudly or shouting. He hung up the telephone, assuming there was
an argument, and went outside.
Once outside, A.T. found his cousin with his back to the garage. About seven
people were encircling him. Gomez‘s hands were out (palms out at shoulder
height) in front of him. He seemed scared and confused. Those surrounding
Gomez were later identified as Wolfe, Anaya, Steven Delgado, Robert Pompa and
others. Wolfe was standing ―kind of offset‖; A.T. had never met Wolfe but knew
who he was.
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Realizing the argument was about a debt he himself owed, A.T. asked what was
going on. Wolfe told A.T. to mind his own business and continued to confront
Gomez over the fact he ―owed the homies money.‖ Eventually, A.T. was able to
tell Wolfe that it was not Gomez they were looking for, rather it was him. Wolfe
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made a phone call. He then apologized to Gomez and pointed to A.T., saying,
―You are the one.‖ [A.T.‘s debt was incurred as a result of borrowing money or
drugs from the gang (then selling the drugs for profit). A.T. borrowed from the
gang on two occasions, fell behind on payments, and had not repaid that debt plus
―tithe‖ and interest.]
Anaya, who had been standing near the sidewalk, said ―cops,‖ and pointed down
the street. In response to this news, everyone went inside the house. Once inside,
A.T. was surrounded by Wolfe, Delgado, Pompa and another individual. Anaya
and a second individual stayed at the window as lookouts. Pompa struck him in
the face and he was verbally harassed. Wolfe told A.T. he owed money and began
grabbing items in the house. A.T. tried to explain that the house belonged to his
aunt and that the property in the home was not his. He offered to pay what he
owed, and also offered the $200 he had in his possession. In the room A.T. shared
with his cousin, Wolfe and Anaya were ―taking things apart‖; A.T. again
explained most of the property belonged to his aunt. Wolfe or Delgado told him to
shut up.
About this same time, the police knocked on the door. The officers had everyone
exit the back room with their hands up. Identification was checked and names
were taken. A.T. gave the officers a false name because he had violated his
parole. Ultimately, no one was arrested and the police left. A.T. did not say
anything to the police then because he had been told to shut up.
After the police left, Wolfe, who did most of the talking, told A.T. what was
going to happen. Wolfe said A.T. owed $5,000, it needed to be paid, and they
would be taking items with them. He was reminded that he knew ―what happens‖
to people who do not ―pay up.‖ He would be given a phone number for ―Pablo.‖
He was to call Pablo in an hour to receive additional information about whom to
pay. A.T. told Wolfe he would do his best to pay the debt. Thereafter, A.T.‘s
belongings were loaded into a white or cream-colored Chevrolet Blazer, including
computers, printers, hard drives and keyboards. He did not give anyone
permission to take the items.
After Wolfe, Anaya and the others left, A.T. called the telephone number he was
given for Pablo. He recognized the voice on the other end as that of Wolfe. A.T.
was told to call the number the following day about a meeting. The next day, he
called Pablo's number again; Wolfe answered. Wolfe advised A.T. that he would
be picked up in 30 minutes; however, a few moments later, Wolfe called back.
A.T. was advised they were waiting for him outside.
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A.T. went outside and got into the car as requested. Wolfe was driving, Pompa
was the front seat passenger, and Delgado was in the back. They went to what
A.T. assumed was Pompa‘s home. Pompa offered him a beer, but he declined. He
was nervous and fearful. Wolfe advised him he had 29 days within which to pay
back $5,000. Although A.T. had borrowed $3,000, the amount increased
significantly because of ―fines.‖ A.T. asked that his belongings be returned, but
Wolfe denied the request. A.T. also asked if he could have ―assistance‖ in
repaying the debt. After making a telephone call, Wolfe denied A.T.‘s request for
assistance.
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Despite having no job or other financial resources, A.T. understood that if he did
not repay the debt, he would be ―done,‖ as stated by Wolfe. A.T. understood
―done‖ as meaning he would ―be whacked‖ or killed. A.T. was further advised
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that if he loved his kids, he would pay the money within the timeframe provided.
He was then taken home.
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Three or four days later, A.T. was arrested for absconding from parole and was
taken to jail. Although he did not want to tell police about what had happened,
and knew he was risking his life by doing so, A.T. also feared what would happen
when the debt repayment deadline expired. He gave a statement to Detective
Guzman and received protective custody. [Once he was released from custody,
A.T. was provided with additional protection in the form of housing, utilities, and
food assistance, and was provided a cell phone as well. He received that
assistance between February and September 2010, but was ultimately asked to
leave the program after breaking a rule.]
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While serving time in jail, A.T. was transported to the Bob Wiley Detention
Facility. On a bus returning from court, Wolfe was seated behind him. Wolfe told
him ―not to do it,‖ and that he could fix everything, including A.T.‘s status with
the gang. Wolfe offered A.T. a car and some money not to say anything. A.T. did
not believe him. On another occasion, as he and Detective Guzman passed Wolfe
in a cell, Wolfe said, ―Don't do it A[.].‖ That meant A.T. should not talk to the
police. [Jesus Flores, a correctional deputy with the Tulare County Sheriff's
Department, testified that on February 5, 2010, he was working at the main jail.
He and Detective Guzman were escorting A.T. toward an interview room. As the
group passed cell No. 7, Flores heard someone say, ―A[.], don't do it, don't do it.‖
Flores looked back and saw Wolfe.]
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A.T. is still afraid because he still owes money. By testifying, he is considered to
be ―telling on‖ defendants and ―the whole rest of the gang.‖
Tulare Police Officer Jeremy Faiman testified that on January 31, 2010, about
1:10 p.m., he responded in a marked K9 patrol unit to a possible home invasion in
progress. As he approached the home, he observed two subjects standing out
front, looking up and down the street. After calling for additional units, he
contacted those subjects, who were identified as Manuel Rubio and Mario Duarte.
As he directed Rubio and Duarte to sit down with their hands in sight, Roy
Gomez exited the home, quickly shutting the door behind him. Gomez consented
to a look around the house, indicating a couple of ―homies‖ were inside. He was
nervous.
Officer Faiman and an undercover officer approached the unlocked door. They
entered and cleared the home. Several people exited a bedroom. Everyone was
―really calm. It was almost a scary calm.‖ Wolfe, Anaya, Pompa, Delgado, Jaime
Rodriguez, and Adrian Vasquez were identified. Other than a legal folding
pocketknife, no weapons were found on anyone located in the home. When asked
for identification, A.T. provided a false name. Later, Officer Faiman learned
A.T.'s true name and that he was wanted for a parole violation.
While the police were present, no one in the home said anything about a crime
being committed. They said ―everything was cool, they didn't need any police
assistance.‖ Officer Faiman did not notice any computer equipment, but he was
not looking for it. His focus was on the people inside. The television was not on,
there was no beer in view, nor was there any food being prepared or grilled at the
home. Thereafter, the investigation concluded and the officers left the residence.
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Roy Gomez testified that he was living with his parents and cousin in January
2010. He recalled the day the police came to the house. A couple of friends had
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come over to watch football and ―hang out.‖ He could not recall everyone‘s name.
[Later, Gomez testified that he knew who Delgado and Pompa were. He thought
he knew who Mario Duarte, Manuel Rubio and Jaime Rodriguez were as well. He
claimed hearing the names of the others present that day ―refreshed [his] mind.‖]
Wolfe was there; he and Wolfe would get together now and then to watch
football. Gomez could not recall how often Wolfe had been to his home; he had
never been to Wolfe‘s house. Anaya was also there, arriving with Wolfe. Gomez
had been introduced to Anaya previously through a friend whose name he did not
remember. There were five or six people total.
Everyone arrived at the same time because Gomez recalled hearing the doorbell.
He believed he answered the door and went outside to speak with them first.
Everyone greeted one another, ―nothing really serious.‖ Then, with the exception
of a few people who had stayed outside to smoke, the group headed inside. They
had only been sitting down and watching television for two to three minutes when
the police arrived. Gomez could see through the front window when the police
arrived, and he went outside to see what the problem was.
The police advised him they had been sent about ―a burglary or something going
on.‖ Gomez did not want the police to go inside his home, but he did
acknowledge he was on parole and thus subject to search. He told the police there
was no reason for them to go inside. He sat outside on the curb while the house
was searched. After the police left, the group stayed at the house ―for a little bit,
watched TV and stuff, you know, and then everybody took off.‖
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His cousin A.T. had a lot of computers. A.T. tried to sell everything he had that
day, and did sell a computer to Wolfe after the police left. A.T. carried the
computer he sold to Wolfe out to Wolfe's white Blazer.
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Gomez stated there had not been any dispute or argument that day, nor did any
physical violence occur. He did not know if he talked to Detective Guzman after
his cousin‘s arrest. At the police station, Gomez ―pled the right to remain silent,‖
so he did not give a statement. He denied telling the detective there had been a
little misunderstanding and it had been straightened out and was not gang related.
He did not tell Guzman he was struck or hit, nor did he tell Guzman that he did
not know Wolfe. Neither did he recall telling Guzman anything about computers.
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Although he used to be a gang member, Gomez was no longer a gang member
because he ―grew out of it.‖ And he just ―hung out‖ with the West Side Tulare
Norteños. Gomez has three felony convictions, the last in 2005.
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Jaime Rodriguez testified for the defense. In January 2010, he recalled walking on
the street in Tulare on his way to see his friend Isabel. He saw two friends
standing outside a house he later learned belonged to Gomez. He stopped to say
hello to Manuel Rubio and Mario Duarte. They spoke for a few minutes and then
Gomez invited them inside to watch the polo game and to barbeque. There were
no arguments, fights, or disagreements. They watched the polo game for a few
minutes before the police arrived. They had gone into a back room to smoke the
marijuana Rodriguez had with him. They also looked at some computers; A.T.
offered to sell the computers. The police arrived, but after checking everyone‘s
identification, they left. Rodriguez then left because he was nervous. He was on
probation and did not want to go back into custody. [On cross-examination,
Rodriguez qualified the group was only discussing a barbeque. Detective Guzman
testified he took Rodriguez's statement, and Rodriguez had told him there was a
barbeque going on in the backyard. Rodriguez made no mention of marijuana.]
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On February 4, 2010, Tulare police officers conducted a probation compliance
check at a residence in Tulare. The officers were going to attempt to take Wolfe
into custody. No one responded to the front door. Helicopter surveillance,
however, noted someone leaving through the back. After a vehicle pulled out of
the garage, a traffic enforcement stop was conducted on a white Chevrolet Blazer.
Wolfe‘s girlfriend Desiree Villareal was contacted. She reported that Wolfe was
at work. A subsequent probation search was conducted and numerous computer
parts and equipment were located in the garage.
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Detective Guzman with the Tulare County Police Department was assigned to
investigate an incident involving A.T. Related thereto, on February 4, 2010,
Wolfe and Anaya were taken into custody. Following Miranda (Miranda v.
Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) warnings, Anaya
gave a recorded statement. He indicated he was helping his girlfriend‘s uncle—
Robert Pompa—pick up and load some computer equipment. He recalled carrying
out a monitor and keyboard from inside a home. Anaya admitted knowing
Delgado. He denied being a gang member himself, but acknowledged associating
with Northerners, or Norteños.
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On February 5, 2010, Detective Guzman responded to the main jail. He and
Deputy Flores were walking with A.T. Passing Wolfe‘s cell, he heard Wolfe say,
―[D]on't do it A[.], don't do it.‖
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During the investigation Detective Guzman listened to more than 10 calls made
from the Tulare County Sheriff‘s Department pretrial facility. He recognized the
persons speaking in those phone calls as Wolfe, his girlfriend Desiree Villareal,
and Wolfe‘s stepbrother Dexter Rabadan. Several of the recorded phone calls
were played for the jury.
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Facts Relevant to the Gang Allegations
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Patrick O‘Donohoe is a peace officer with the City of Tulare. While on duty on
November 20, 2006, O‘Donohoe came into contact with Anaya. At the time,
Anaya was wearing blue jeans, a gray sweatshirt, and white shoes with red shoe
laces, a red belt, and a red and black ‗49ers beanie.
Tony Espinoza is a detective with the Tulare Police Department assigned to the
gang unit. On July 16, 2009, the detective came into contact with Mario Duarte
and Manuel Rubio. Duarte and Rubio, accompanied by Johnny Hernandez, were
sitting on a park bench in Tulare. Duarte was photographed wearing various items
of red clothing. There was writing or gang graffiti on the table in red ink, and each
of the individuals had a red permanent ink marker in his possession.
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On January 29, 2010, Detective Espinoza was on duty and conducted a traffic
stop of a vehicle; the front license plate was not fully secured. Wolfe was the
driver and Steven Delgado was the passenger. In a photo taken during the traffic
stop, Wolfe was photographed wearing various items of red clothing. A few days
later, on February 4, 2010, Detective Espinoza assisted with the search of a
residence. The car he had pulled over a few days earlier containing Wolfe was
located at the home.
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Detective Guzman was designated a gang expert. He estimated there were over
400 active gang members in Tulare. He described the formation of the Norteño
gang and the signs and symbols related to the gang. The gang‘s activities included
assaults, assaults with a deadly weapon, robberies, drug sales, and weapons
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possession. Guzman also testified to predicate offenses, gang packets, and the
gang modules at the Bob Wiley Detention Facility.
In Detective Guzman's opinion, Wolfe is an active ―Northerner‖ gang member
and was on January 31, 2010. His opinion is based upon police reports, arrests,
contacts, jail housing assignments, and information known to the department.
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It is also the detective‘s opinion that Anaya is an active Northerner gang member
and was on January 31, 2010. Guzman's opinion is based on the fact he asked
Anaya if he was a gang member and Anaya responded, ― ‗I guess so.‘ ‖ His
opinion is also based on Anaya‘s jail housing assignment and the fact that San
Francisco ‗49ers clothing is typically worn as a symbol of the Northern gang.
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Detective Guzman was also of the opinion that Delgado, Pompa, Duarte, Rubio
and Rodriguez were all active gang members. Further, the detective believed A.T.
was a gang member until January 31, 2010. He was no longer a gang member
because he failed to pay his debt and because A.T. was considered a ―rat‖ for
telling the police about a crime committed by a fellow gang member.
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Presented with a hypothetical situation involving similar facts, Detective Guzman
believed the type of crimes alleged to have been committed would have been
committed at the direction of and for the benefit of the Norteño criminal street
gang. Additionally, those crimes would have been committed in association with
the Norteño criminal street gang and furthered its objectives.
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Defense expert Albert Ochoa, a behavioral interventionist, worked at a charter
school in Visalia. He met with students, including those involved in gangs, every
day. His past experience as executive director of a community center and mental
health specialist at a youth services agency also put him in contact with young
people involved in gangs, either as members or as associates. Ochoa has a
certificate in basic counseling and psychology from La Puente Bible College. He
is regularly contacted regarding his opinion on gang issues and has been
previously certified as a gang expert in Tulare County.
Following his interviews with Wolfe and Anaya, and his review of the materials
provided by Wolfe‘s attorney, Ochoa concluded that Wolfe and Anaya associate
with the gang. In his opinion, they are not active gang members.
On cross-examination, Ochoa indicated that a photograph of Anaya wearing items
of red clothing, taken during a 2006 contact with law enforcement, would not
change his opinion that Anaya was not a gang member because the photo was six
years old. Ochoa indicated he had not listened to the phone call between Wolfe
and his half brother so that fact was not considered for purposes of his opinion.
Ochoa acknowledged that he is paid to testify. He further acknowledged that were
he to have found Wolfe and Anaya to be active gang members, he would not have
been paid. Ochoa could not opine as to whether Delgado, Pompa and the others
were gang members because he did not interview them. Ochoa agreed that an
associate of the gang does not ―call shots.‖ He further agreed that if someone
―pleads to a crime‖ and admits a related gang enhancement, he would opine that
individual is an active gang member.
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III.
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STANDARD OF REVIEW
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Relief by way of a petition for writ of habeas corpus extends to a person in custody
4 pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws
5 or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor,
6 529 U.S. 362, 375 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed
7 by the U.S. Constitution. The challenged conviction arises out of Kern County Superior Court,
8 which is located within the Eastern District of California. 28 U.S.C. § 2254(a); 28 U.S.C.
9 § 2241(d).
10
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act
11 of 1996 (―AEDPA‖), which applies to all petitions for writ of habeas corpus filed after its
12 enactment. Lindh v. Murphy, 521 U.S. 320 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th
13 Cir. 1997) (en banc). The instant petition was filed after the enactment of the AEDPA and is
14 therefore governed by its provisions.
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Under the AEDPA, relitigation of any claim adjudicated on the merits in state court is
16 barred unless a petitioner can show that the state court‘s adjudication of his 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.
21 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 97–98 (2011); Lockyer v. Andrade, 538
22 U.S. 63, 70–71 (2003); Williams, 529 U.S. at 413.
23
As a threshold matter, this Court must ―first decide what constitutes ‗clearly established
24 Federal law, as determined by the Supreme Court of the United States.‘‖ Lockyer, 538 U.S. at 71
25 (quoting 28 U.S.C. § 2254(d)(1)). In ascertaining what is ―clearly established Federal law,‖ this
26 Court must look to the ―holdings, as opposed to the dicta, of [the Supreme Court‘s] decisions as
27 of the time of the relevant state-court decision.‖ Williams, 529 U.S. at 412. ―In other words,
28 ‗clearly established Federal law‘ under § 2254(d)(1) is the governing legal principle or principles
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1 set forth by the Supreme Court at the time the state court renders its decision.‖ Id. In addition,
2 the Supreme Court decision must ―‗squarely address [] the issue in th[e] case‘ or establish a legal
3 principle that ‗clearly extend[s]‘ to a new context to the extent required by the Supreme Court in
4 . . . recent decisions‖; otherwise, there is no clearly established Federal law for purposes of
5 review under AEDPA. Moses v. Payne, 555 F.3d 742, 754 (9th Cir. 2009) (quoting Wright v.
6 Van Patten, 552 U.S. 120, 125 (2008)); Panetti v. Quarterman, 551 U.S. 930 (2007); Carey v.
7 Musladin, 549 U.S. 70 (2006). If no clearly established Federal law exists, the inquiry is at an
8 end and the Court must defer to the state court‘s decision. Musladin, 549 U.S. 70; Wright, 552
9 U.S. at 126; Moses, 555 F.3d at 760.
10
If the Court determines there is governing clearly established Federal law, the Court must
11 then consider whether the state court‘s decision was ―contrary to, or involved an unreasonable
12 application of, [the] clearly established Federal law.‖ Lockyer, 538 U.S. at 72 (quoting 28 U.S.C.
13 § 2254(d)(1)). ―Under the ‗contrary to‘ clause, a federal habeas court may grant the writ if the
14 state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question
15 of law or if the state court decides a case differently than [the] Court has on a set of materially
16 indistinguishable facts.‖ Williams, 529 U.S. at 412–13; see also Lockyer, 538 U.S. at 72. ―The
17 word ‗contrary‘ is commonly understood to mean ‗diametrically different,‘ ‗opposite in character
18 or nature,‘ or ‗mutually opposed.‘‖ Williams, 529 U.S. at 405 (quoting Webster‘s Third New
19 International Dictionary 495 (1976)). ―A state-court decision will certainly be contrary to
20 [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the
21 governing law set forth in [Supreme Court] cases.‖ Id. If the state court decision is ―contrary to‖
22 clearly established Supreme Court precedent, the state decision is reviewed under the pre23 AEDPA de novo standard. Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc).
24
―Under the ‗reasonable application clause,‘ a federal habeas court may grant the writ if
25 the state court identifies the correct governing legal principle from [the] Court‘s decisions but
26 unreasonably applies that principle to the facts of the prisoner‘s case.‖ Williams, 529 U.S. at 413.
27 ―[A] federal court may not issue the writ simply because the court concludes in its independent
28 judgment that the relevant state court decision applied clearly established federal law erroneously
10
1 or incorrectly. Rather, that application must also be unreasonable.‖ Id. at 411; see also Lockyer,
2 538 U.S. at 75–76. The writ may issue only ―where there is no possibility fair minded jurists
3 could disagree that the state court‘s decision conflicts with [the Supreme Court‘s] precedents.‖
4 Richter, 562 U.S. at 102. In other words, so long as fair minded jurists could disagree on the
5 correctness of the state court‘s decision, the decision cannot be considered unreasonable. Id. If
6 the Court determines that the state court decision is objectively unreasonable, and the error is not
7 structural, habeas relief is nonetheless unavailable unless the error had a substantial and injurious
8 effect on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).
9
The court looks to the last reasoned state court decision as the basis for the state court
10 judgment. Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011); Robinson v. Ignacio, 360 F.3d
11 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially
12 incorporates the reasoning from a previous state court decision, this court may consider both
13 decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121,
14 1126 (9th Cir. 2007) (en banc). ―When a federal claim has been presented to a state court and the
15 state court has denied relief, it may be presumed that the state court adjudicated the claim on the
16 merits in the absence of any indication or state-law procedural principles to the contrary.‖
17 Richter, 562 U.S. at 99. This presumption may be overcome by a showing ―there is reason to
18 think some other explanation for the state court‘s decision is more likely.‖ Id. at 99–100 (citing
19 Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)).
20
Where the state court reaches a decision on the merits but provides no reasoning to
21 support its conclusion, a federal habeas court independently reviews the record to determine
22 whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v.
23 Thompson, 336 F.3d 848, 853 (9th Cir. 2003). ―Independent review of the record is not de novo
24 review of the constitutional issue, but rather, the only method by which we can determine
25 whether a silent state court decision is objectively unreasonable.‖ Himes, 336 F.3d at 853. While
26 the federal court cannot analyze just what the state court did when it issued a summary denial,
27 the federal court must review the state court record to determine whether there was any
28 ―reasonable basis for the state court to deny relief.‖ Richter, 562 U.S. at 98. This court ―must
11
1 determine what arguments or theories ... could have supported, the state court‘s decision; and
2 then it must ask whether it is possible fairminded jurists could disagree that those arguments or
3 theories are inconsistent with the holding in a prior decision of [the Supreme] Court.‖ Id. at 102.
4
IV.
5
REVIEW OF CLAIMS
6
A. Jury Instructions
7
1. Witness Credibility
8
In his first claim for relief, Petitioner asserts that the trial court violated his rights to due
9 process and jury assessment of the credibility of witnesses by instructing the jury with an
10 inapplicable portion of a witness credibility instruction. (ECF No. 1 at 5). Respondent argues that
11 at the time Petitioner‘s conviction became final, there was no clearly established federal law
12 holding that such an instruction violated Petitioner‘s due process rights. Further, assuming
13 arguendo that there was a due process violation, the state court reasonably determined that any
14 instruction error was harmless under Chapman v. California, 386 U.S. 18, 24 (1967). (ECF No.
15 14 at 24–25).
16
This claim was presented on direct appeal to the California Court of Appeal, Fifth
17 Appellate District, which denied the claim in a reasoned decision. The claim also was raised in
18 the petition for review, which the California Supreme Court summarily denied. The Court
19 presumes that the California Supreme court adjudicated the claim on the merits. See Richter, 562
20 U.S. at 99. As federal courts review the last reasoned state court opinion, the Court will ―look
21 through‖ the California Supreme Court‘s summary denial and examine the decision of the
22 California Court of Appeal. See Brumfield v. Cain, 135 S. Ct. 2269, 2276 (2015); Johnson v.
23 Williams, 133 S. Ct. 1088, 1094 n.1 (2013); Ylst, 501 U.S. at 806.
24
In denying Petitioner‘s claim regarding the witness credibility instruction, the California
25 Court of Appeal stated:
26
27
28
Defendants contend the trial court erred when it instructed the jury with a portion
of CALCRIM No. 226 that was inapplicable and, as a result, their rights to due
process and the right to a jury assessment of the credibility of witnesses have been
violated. Further, they assert the error was not harmless.
12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
A. Applicable Standards
―‗It is well established in California that 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. [Citations.] ―[T]he fact that the necessary
elements of a jury charge are to be found in two instructions rather
than in one instruction does not, in itself, make the charge
prejudicial.‖ [Citation.] ―The absence of an essential element in
one instruction may be supplied by another or cured in light of the
instructions as a whole.‖ [Citation.]‘ [Citation.]‖ (People v. Bolin
(1998) 18 Cal.4th 297, 328.)
―It is fundamental that jurors are presumed to be intelligent and capable of
understanding and applying the court‘s instructions. [Citation.]‖ (People v.
Gonzales (2011) 51 Cal.4th 894, 940.)
―In reviewing the purportedly erroneous instructions, ‗we inquire
―whether there is a reasonable likelihood that the jury has applied
the challenged instruction in a way‖ that violates the Constitution.‘
[Citations.] In conducting this inquiry, we are mindful that ‗―a
single instruction to a jury may not be judged in artificial isolation,
but must be viewed in the context of the overall charge.‖‘
[Citations.]‖ (People v. Frye (1998) 18 Cal.4th 894, 957, overruled
on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421,
fn. 22.)
17
We consider the instructions as a whole, along with the jury‘s findings and the
closing arguments of counsel. (People v. Cain (1995) 10 Cal.4th 1, 36; People v.
Eid (2010) 187 Cal.App.4th 859, 883.) We will find error only if it is reasonably
likely the instructions as a whole caused the jury to misunderstand the applicable
law. (Estelle v. McGuire (1991) 502 U.S. 62, 74; People v. Kelly (1992) 1 Cal.4th
495, 525-527.)
18
B. The Language of CALCRIM No. 226
19
The jury was instructed with CALCRIM No. 226 as follows:
15
16
20
21
22
23
24
25
26
27
―You alone must judge the credibility or believability of the
witnesses. In deciding whether testimony is true and accurate use
your common sense and experience. You must judge the testimony
of each witness by the same standards setting aside any bias or
prejudice you may have. You may believe all, part or none of any
witness‘s testimony. Consider the testimony of each witness and
decide how much of it you believe.
―In evaluating a witness‘s testimony you may consider
anything that reasonably tends to prove or disprove the truth or
accuracy of that testimony. Among the factors that you may
consider are: How well could the witness, see, hear, or otherwise
perceive the things about which the witness testified.
―How well was the witness able to remember and describe
what happened?
28
13
1
―What was the witness‘s behavior while testifying?
2
―Did the witness understand the questions and answer them
directly?
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
―Was the witness‘s testimony influenced by a factor such
as bias or prejudice, a personal relationship with some one
involved in the case or a personal interest in how the case is
decided?
―What was the witness‘s attitude about the case or about
testifying?
―Did the witness make a statement in the past that is
consistent or inconsistent with his or her testimony?
―How reasonable is the testimony when you consider all
the other evidence in the case? Did other evidence prove or
disprove any fact upon which the witness testified?
―Did the witness admit to being untruthful? Has the witness
been convicted of a felony?
―Was the witness promised immunity or leniency in
exchange for his testimony?
―Do not automatically reject testimony just because of
inconsistencies or conflicts. Consider whether the differences are
important or not. People sometimes honestly forget things or make
mistakes about what they remember.
―Also, 2 people may witness the same event yet see or hear
it differently. If the evidence establishes that a witness‘s character
for truthfulness has not been discussed among the people who
know him or her you may conclude from a lack of discussion that
the witness‘s character for truthfulness is good.
―If you do not believe a witness‘s testimony that he or she
no longer remembers something that testimony is inconsistent with
the witness‘s earlier statement on that subject. If you decide that a
witness deliberately lied about something significant in this case
you should consider not believing anything that witness says. Or, if
you think the witness lied about some things but told the truth
about others, you may simply accept the part that you think is true
and ignore the rest.‖
23
C. Analysis
24
25
26
27
28
CALCRIM No. 226 instructs the jury on factors that it may consider in judging
the credibility of a witness. We agree the trial court read to the jury an
inapplicable portion of the instruction concerning character evidence: ―If the
evidence establishes that a witness‘s character for truthfulness has not been
discussed among the people who know him or her you may conclude from a lack
of discussion that the witness‘s character for truthfulness is good.‖ This portion of
the instruction was simply not relevant or applicable in light of the testimony at
trial. ―It is error for a court to give an ‗abstract‘ instruction, i.e., ‗one which is
14
1
2
3
4
5
6
7
8
9
10
11
12
13
14
correct in law but irrelevant[.]‘ [Citation.]‖ (People v. Rowland (1992) 4 Cal.4th
238, 282.) Indeed, the Bench Notes to CALCRIM No. 226 instruct that the
challenged language should be given only ―if relevant based on the evidence.‖
The challenged portion of the instruction, addressing circumstances in which the
jury could assume good character for truthfulness from the absence of a
discussion among character witnesses about the witness‘s character for honesty,
was irrelevant because no evidence supported it. Thus, the court erred in giving it.
However, this error did not prejudice defendants. We look to other instructions
given to the jury in assessing prejudice. (People v. Sanders (1995) 11 Cal.4th 475,
536-537.) Here, the jurors were thoroughly instructed on how to evaluate the
testimony of witnesses, which in addition to CALCRIM No. 226 included the
following: CALCRIM Nos. 301 (Single Witness‘s Testimony), 302 (Evaluating
Conflicting Evidence), 316 (Additional Instructions on Witness Credibility—
Other Conduct), 318 (Prior Statements as Evidence), 332 (Expert Witness
Testimony) and 333 (Opinion Testimony of Lay Witness). Significantly, too, the
jury was instructed with CALCRIM No. 200, which provided in pertinent part:
―Some of these instructions may not apply, depending on your findings about the
facts of the case. After you have decided what the facts are, follow the
instructions that do apply to the facts as you find them.‖ Thus, it is most likely the
jury ignored the challenged portion of the instruction after correctly determining it
was not relevant or applicable. (People v. Gonzales, supra, 51 Cal.4th at p. 940.)
Additionally, as the Attorney General argues, the challenged language applied to
all witnesses, not just the victim. Given the number of credibility factors and
instructions, nothing suggests the verdicts obtained here were the result of any
consideration of the challenged language. Notably too, neither party mentioned
nor emphasized the challenged language in closing arguments to the jury, further
reducing the likelihood of prejudice.
15
16
17
We find it is not reasonably likely the instructions as a whole caused the jury to
misunderstand the applicable law. (Estelle v. McGuire, supra, 502 U.S. at p. 74;
People v. Kelly, supra, 1 Cal.4th at pp. 525-527.) In sum, the error was harmless
under either the state or federal constitutional standard of error. (See Chapman v.
California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.)
18
19 (ECF No. 14 at 69–73).
20
Here, the California Court of Appeal found that the trial court erred under state law by
21 instructing the jury with an irrelevant portion of CALCRIM No. 226, but that the error was
22 harmless under the federal constitutional standard set forth in Chapman. (ECF No. 14 at 73). The
23 Supreme Court has held that when a state court‘s ―Chapman decision is reviewed under AEDPA,
24 ‗a federal court may not award habeas relief under § 2254 unless the harmlessness determination
25 itself was unreasonable.‘‖ Davis v. Ayala, 135 S. Ct. 2187, 2199 (2015) (quoting Fry v. Pliler,
26 551 U.S. 112, 119 (2007)). That is, Petitioner must show that the state court‘s harmless error
27 determination ―was so lacking in justification that there was an error well understood and
28 comprehended in existing law beyond any possibility of fairminded disagreement.‖ Id. (internal
15
1 quotation marks omitted) (quoting Richter, 562 U.S. at 103).
2
Under Chapman, ―the test for determining whether a constitutional error is harmless . . .
3 is whether it appears ‗beyond a reasonable doubt that the error complained of did not contribute
4 to the verdict obtained.‘‖ Neder v. United States, 527 U.S. 1, 15 (1999) (quoting Chapman, 386
5 U.S. at 24). The California Court of Appeal‘s decision is not an unreasonable application of
6 Chapman. The state court considered the challenged portion of the CALCRIM No. 226
7 instruction in the context of the jury instructions as a whole. The state court noted that the jury
8 was given multiple instructions on how to evaluate the testimony of witnesses in addition to
9 CALCRIM No. 200, which provides in pertinent part: ―Some of these instructions may not
10 apply, depending on your findings about the facts of the case. After you have decided what the
11 facts are, follow the instructions that do apply to the facts as you find them.‖ Thus, the court
12 reasonably concluded that the jury most likely ignored the challenged portion of the instruction
13 since it was irrelevant. The California Court of Appeal‘s Chapman decision is not ―so lacking in
14 justification that there was an error well understood and comprehended in existing law beyond
15 any possibility of fairminded disagreement.‖ Richter, 562 U.S. at 103. Accordingly, Petitioner is
16 not entitled to habeas relief on his first claim and it must be denied.
17
2. False Statement
18
In his second claim for relief, Petitioner asserts that the trial court violated his rights to
19 due process and jury assessment of the facts by instructing the jury with an inapplicable
20 instruction regarding false or misleading statements and consciousness of guilt. (ECF No. 1 at 9).
21 Respondent argues that this claim is procedurally defaulted. (ECF No. 14 at 30). Moreover, on
22 the merits, Respondent contends that a fairminded jurist possibly could find no basis to hold that
23 the inclusion of an arguably irrelevant instruction violates the Constitution. (Id. at 32–33).
24
This claim was not raised on direct appeal. Petitioner first raised this claim in his state
25 habeas petition in the California Supreme Court. (LD 29). The California Supreme Court
26 summarily denied Petitioner‘s habeas petition, citing to In re Dixon, 41 Cal. 2d 756, 759 (1953).
27 (LD 30).
28
16
1
2
a. Procedural Default
A federal court will not review a petitioner‘s claims if the state court has denied relief on
3 those claims pursuant to a state law procedural ground that is independent of federal law and
4 adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 729–30 (1991). This
5 doctrine of procedural default is based on the concerns of comity and federalism. Id. at 730–32.
6 However, there are limitations as to when a federal court should invoke procedural default and
7 refuse to review a claim because a petitioner violated a state‘s procedural rules. Procedural
8 default can only block a claim in federal court if the state court ―clearly and expressly states that
9 its judgment rests on a state procedural bar.‖ Harris v. Reed, 489 U.S. 255, 263 (1989).
10
Here, the California Supreme Court summarily denied Petitioner‘s habeas petition with a
11 citation to In re Dixon, 41 Cal. 2d 756, 759 (1953). (LD 30). Under the Dixon rule, a petitioner
12 cannot raise a claim in a post-appeal habeas petition when that claim was not, but could have
13 been, raised on direct appeal. Dixon, 41 Cal. 2d at 759. As the California Supreme Court clearly
14 and expressly stated that its judgment rests on a state procedural bar, procedural default is
15 appropriate if the Dixon rule is independent and adequate.
16
To qualify as ―independent,‖ a state procedural ground ―must not be ‗interwoven with the
17 federal law.‘‖ Park v. California, 202 F.3d 1146, 1152 (9th Cir. 2000) (quoting Michigan v.
18 Long, 463 U.S. 1032, 1040–41 (1983)). Prior to In re Robbins, 18 Cal. 4th 770 (1998), denials of
19 California state habeas petitions for Dixon violations were not independent of federal law. Park,
20 202 F.3d at 1152. Although the Ninth Circuit has not explicitly held that post-Robbins denials
21 for Dixon violations are independent, the Ninth Circuit has noted that ―[t]he California Supreme
22 Court has adopted in Robbins a stance from which it will now decline to consider federal law
23 when deciding whether claims are procedurally defaulted. . . . The purpose of this approach was
24 to establish the adequacy and independence of the State Supreme Court‘s future Dixon/Robbins
25 rulings . . . .‖ Park, 202 F.3d at 1152 & n.4. Relying on the on the Dixon/Robbins analysis in
26 Park, the Ninth Circuit subsequently held that the California Supreme Court‘s denial of a state
27 habeas petition for untimeliness based on Robbins and In re Clark, 5 Cal. 4th 750 (1993), is an
28 independent procedural ground. Bennett v. Mueller, 322 F.3d 573, 582 (9th Cir. 2003). Pursuant
17
1 to Park and Bennett, the Court finds that the California Supreme Court‘s post-Robbins denial of
2 Petitioner‘s state habeas petition for a Dixon violation is an independent state procedural ground.
3
―To qualify as an ‗adequate‘ procedural ground, a state rule must be ‗firmly established
4 and regularly followed.‘‖ Walker v. Martin, 562 U.S. 307, 316 (2011) (quoting Beard v. Kindler,
5 558 U.S. 53, 60 (2009)). That is, the state procedural bar must be ―clear, consistently applied,
6 and well-established at the time of the petitioner‘s purported default.‖ Lee v. Jacquez, 788 F.3d
7 1124, 1128 (9th Cir. 2015) (internal quotation marks omitted) (quoting Collier v. Bayer, 408
8 F.3d 1279, 1284 (9th Cir. 2005)). The Ninth Circuit has taken a burden-shifting approach to
9 determining the adequacy of a state procedural ground. See Bennett, 322 F.3d at 586. First, the
10 state must plead an independent and adequate state procedural bar as an affirmative defense. The
11 burden then shifts to the petitioner ―to place that defense in issue.‖ Id. The petitioner‘s burden is
12 ―modest,‖ Lee, 788 F.3d at 1128, and can be satisfied by ―asserting specific factual allegations
13 that demonstrate the inadequacy of the state procedure, including citation to authority
14 demonstrating inconsistent application of the rule,‖ Bennett, 322 F.3d at 586. If the petitioner
15 satisfies his burden, the burden shifts back to the state, which bears ―the ultimate burden of
16 proving the adequacy‖ of the state procedural bar. Id. at 585–86. In the instant case, Petitioner
17 has not raised any challenges to the adequacy of the Dixon rule. Accordingly, as Petitioner has
18 not met his burden, the Court finds that the California Supreme Court‘s post-Robbins denial of
19 Petitioner‘s state habeas petition for a Dixon violation is an adequate state procedural ground.
20
Based on the foregoing, the Court finds that the California Supreme Court expressly
21 invoked an independent and adequate procedural rule in California, commonly referred to as the
22 Dixon rule, and Petitioner has procedurally defaulted this claim. A petitioner ―may obtain federal
23 review of a defaulted claim by showing cause for the default and prejudice from a violation of
24 federal law.‖ Martinez v. Ryan, 132 S. Ct. 1309, 1316 (2012) (citing Coleman, 501 U.S. at 750).
25 Attorney error on direct appeal constituting ineffective assistance of counsel provides ―cause‖ to
26 excuse procedural default. Martinez, 132 S. Ct. at 1317; Coleman, 501 U.S. at 754. However, a
27 claim of ineffective assistance generally must ―be presented to the state courts as an independent
28 claim before it may be used to establish cause for a procedural default.‖ Murray v. Carrier, 477
18
1 U.S. 478, 489 (1986). Here, Petitioner states that ineffective assistance of appellate counsel
2 caused the default, but he has not presented an independent ineffective assistance claim to the
3 state courts. (ECF No. 1 at 9; LD 29). As Petitioner has failed to establish cause and prejudice
4 for his default, the Court finds that Petitioner is procedurally barred from bringing this claim and
5 it should be dismissed. In any case, Petitioner‘s claim is without merit.
6
7
b. Merits
Petitioner simultaneously contends that ―there was no evidence present in the record to
8 support the giving of this instruction‖ and that ―it is undeniable that the jury instruction outlined
9 in CALCRIM 362 did apply, given the fact that Petitioner did give a statement prior to trial
10 proceedings.‖ (ECF No. 1 at 10). The Court construes Petitioner‘s claim as asserting that the
11 instruction was ambiguous and that the jury applied the challenged instruction in an
12 unconstitutional manner. See Allen v. Calderon, 408 F.3d 1150, 1153 (9th Cir. 2005) (―[T]he
13 district court must construe pro se habeas filings liberally.‖).
14
A federal court‘s inquiry on habeas review is not whether a challenged jury instruction
15 ―is undesirable, erroneous, or even ‗universally condemned,‘ but [whether] it violated some right
16 which was guaranteed to the defendant by the Fourteenth Amendment.‖ Cupp v. Naughten, 414
17 U.S. 141, 146 (1973). ―In a criminal trial, the State must prove every element of the offense, and
18 a jury instruction violates due process if it fails to give effect to that requirement.‖ Middleton v.
19 McNeil, 541 U.S. 433, 437 (2004). However, ―not every ambiguity, inconsistency, or deficiency
20 in a jury instruction rises to the level of a due process violation.‖ Id. The pertinent question is
21 ―whether the ailing instruction by itself so infected the entire trial that the resulting conviction
22 violates due process.‖ Estelle v. McGuire, 502 U.S. 62, 72 (1991) (internal quotation marks
23 omitted) (quoting Cupp, 414 U.S. at 147). In reviewing an ambiguous instruction, the Court
24 ―inquire[s] ‗whether there is a reasonable likelihood that the jury has applied the challenged
25 instruction in a way‘ that violates the Constitution.‖ Id. (quoting Boyde v. California, 494 U.S.
26 370, 380 (1990)).
27
The challenged instruction was given to the jury as follows:
28
19
If defendant ERIC THOMAS WOLFE and ADAM DANIEL
ANAYA made a false or misleading statement before this trial
relating to the charged crime, knowing the statement was false or
intending to mislead, that conduct may show he was aware of his
guilt of the crime and you may consider it in determining his guilt.
You may not consider the statement in deciding any other
defendant‘s guilt.
1
2
3
4
If you conclude that the defendant made the statement, it is up to
you to decide its meaning and importance. However, evidence that
the defendant made such a statement cannot prove guilt by itself.
5
6
4
7 (3 CT 786). The instruction explicitly states ―if defendant . . . made a false or misleading
8 statement before this trial‖ and ―[i]f you conclude that the defendant made the statement . . .‖
9 Thus, the challenged instruction makes clear that it is only applicable if the jury finds that
10 Petitioner made a false or misleading statement before trial. Further, as discussed above, the jury
11 was instructed with CALCRIM No. 200, which provides in pertinent part: ―Some of these
12 instructions may not apply, depending on your findings about the facts of the case. After you
13 have decided what the facts are, follow the instructions that do apply to the facts as you find
14 them.‖ Moreover, to safeguard against potential misapplication of the challenged instruction, the
15 trial court advised the jury in the same instruction that ―evidence that the defendant made such a
16 statement cannot prove guilt by itself.‖ Given these limiting provisions in the instruction, the
17 Court finds that there is not a reasonable likelihood that the jury applied the challenged
18 instruction in a way that violates the Constitution. See Estelle, 502 U.S. at 74–75. Petitioner fails
19 to demonstrate how the challenged instruction ―by itself so infected the entire trial that the
20 resulting conviction violates due process.‖ Cupp, 414 U.S. at 147.
21
B. Extortion Conviction
22
In Petitioner‘s third claim for relief, Petitioner challenges his extortion conviction on
23 multiple grounds. Petitioner contends that there was insufficient evidence to support his extortion
24 conviction. (ECF No. 1 at 12). Petitioner also contends that he was erroneously convicted of both
25 extortion and robbery, citing to Brown v. Ohio, 432 U.S. 161 (1977) (involving a double
26 jeopardy claim), and People v. Bailey, 55 Cal. 2d 514, 519 (1961) (recognizing, in the context of
27 theft, that a series of wrongful acts may be aggregated to constitute one offense if they are
28
4
―CT‖ refers to the Clerk‘s Transcript on Appeal lodged by Respondent on October 13, 2015. (ECF No. 15).
20
1 committed pursuant to ―one intention, one general impulse, and one plan‖). (ECF No. 1 at 14).
2 Respondent argues that under the deferential standard exercised on federal habeas review, the
3 state court‘s decision to affirm the extortion conviction ―cannot be second-guessed.‖ (ECF No.
4 14 at 40). To the extent that Petitioner challenges the state court‘s application of the Bailey
5 doctrine, Respondent argues that a claimed violation of state law is not cognizable on federal
6 habeas review. (Id.).
This claim was presented on direct appeal to the California Court of Appeal, Fifth
7
8 Appellate District, which denied the claim in a reasoned decision. However, this claim was not
9 fairly presented to the California Supreme Court either in the petition for review on direct appeal
10 or in the state habeas petition, (LDs 26, 29), and thus, implicates exhaustion concerns.5 However,
11 pursuant to 28 U.S.C. § 2254(b)(2), the Court may deny an unexhausted claim on the merits
12 ―when it is perfectly clear that the [petitioner] does not raise even a colorable federal claim.‖
13 Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005) (adopting the standard set forth in
14 Granberry v. Greer, 481 U.S. 129, 135 (1987)).
To the extent that Petitioner argues that pursuant to Bailey he should have been convicted
15
16 of only one offense rather than convicted of both extortion and robbery, this is an issue of
17 California state law that is not cognizable in federal habeas proceedings. See Wilson v.
18 Corcoran, 562 U.S. 1, 5 (2010) (per curiam) (―[I]t is only noncompliance with federal law that
19 renders a State‘s criminal judgment susceptible to collateral attack in the federal courts.‖);
20 Estelle, 502 U.S. at 67–68 (―[I]t is not the province of a federal habeas court to reexamine state21 court determinations on state-law questions.‖).
22
1. Double Jeopardy
23
The established test for determining what constitutes the ―same offence‖ under the
24 Double Jeopardy Clause was set forth by the Supreme Court in Blockburger v. United States,
25
5
A petitioner in state custody who is proceeding with a petition for writ of habeas corpus generally must exhaust
26 state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on comity to the state court and
gives the state court the initial opportunity to correct the state‘s alleged constitutional deprivations. Coleman, 501
27 U.S. at 731; Rose v. Lundy, 455 U.S. 509, 518 (1982). If Petitioner has not sought relief in the California Supreme
Court for the claims that he raises in the instant petition, the Court cannot proceed to the merits of those claims. 28
28 U.S.C. § 2254(b)(1); O‘Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
21
1 284 U.S. 299, 304 (1932): ―The applicable rule is that where the same act or transaction
2 constitutes a violation of two distinct statutory provisions, the test to be applied to determine
3 whether there are two offenses or only one, is whether each provision requires proof of an
4 additional fact which the other does not.‖ The Blockburger test is satisfied if each statutory
5 provision ―requires proof of a fact that the other does not . . . notwithstanding a substantial
6 overlap in the proof offered to establish the crimes.‖ Brown, 432 U.S. at 166 (internal quotation
7 marks omitted) (quoting Iannelli v. United States, 420 U.S. 770, 785 n.17 (1975)).
8
The California Penal Code defines extortion as ―the obtaining of property from another,
9 with his consent . . . induced by a wrongful use of force or fear.‖ Cal. Penal Code § 518. Robbery
10 is defined as ―the felonious taking of personal property in the possession of another, from his
11 person or immediate presence, and against his will, accomplished by means of force or fear.‖
12 Cal. Penal Code § 211. The California courts have articulated the following distinctions between
13 extortion and robbery under California law:
14
15
16
17
18
19
One distinction between robbery and extortion frequently noted by
courts and commentators is that in robbery property is taken from
another by force or fear ―against his will‖ while in extortion
property is taken from another by force or fear ―with his consent.‖
The two crimes, however, have other distinctions. Robbery
requires a ―felonious taking‖ which means a specific intent to
permanently deprive the victim of the property. Robbery also
requires the property be taken from the victim‘s ―person or
immediate presence.‖ Extortion does not require proof of either of
these elements. Extortion does, however, require the specific intent
of inducing the victim to consent to part with his or her property.
20 People v. Torres, 33 Cal. App. 4th 37, 50 (Cal. Ct. App. 1995) (citations and footnote omitted).
21 Based on the foregoing, the Blockburger test is satisfied because extortion under California Penal
22 Code section 518 and robbery under section 211 each require proof of a fact that the other does
23 not. As it is ―perfectly clear‖ that Petitioner does not raise a colorable double jeopardy claim
24 with respect to his extortion and robbery convictions, the Court may deny this claim on the
25 merits pursuant to 28 U.S.C. § 2254(b)(2).
26
2. Sufficiency of the Evidence
27
The United States Supreme Court has held that when reviewing a sufficiency of the
28 evidence claim, a court must determine whether, viewing the evidence and the inferences to be
22
1 drawn from it in the light most favorable to the prosecution, any rational trier of fact could find
2 the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
3 307, 319 (1979). A reviewing court ―faced with a record of historical facts that supports
4 conflicting inferences must presume—even if it does not affirmatively appear in the record—that
5 the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that
6 resolution.‖ Id. at 326. State law provides ―for ‗the substantive elements of the criminal offense,‘
7 but the minimum amount of evidence that the Due Process Clause requires to prove the offense
8 is purely a matter of federal law.‖ Coleman v. Johnson, 132 S. Ct. 2060, 2064 (2012) (quoting
9 Jackson, 443 U.S. at 319).
10
Petitioner argues that there is insufficient evidence to prove that the victim, A.T.,
11 ―consented to giving his money because he testified that he had no choice.‖ (ECF No. 1 at 15).
12 As stated above, the California Penal Code provides that ―[e]xtortion is the obtaining of property
13 from another, with his consent . . . induced by a wrongful use of force or fear.‖ Cal. Penal Code
14 § 518. Recognizing the ―paradox of a taking which is both consensual and the result of force or
15 fear,‖ Torres, 33 Cal. App. 4th at 50 n.6, California courts have stated that ―[t]o constitute
16 extortion the victim must consent, albeit it is a coerced and unwilling consent,‖ People v.
17 Goodman, 159 Cal. App. 2d 54, 61 (Cal. Ct. App. 1958). See also People v. Goldstein, 84 Cal.
18 App. 2d 581, 586 (1948) (―The victim of an extortioner might openly consent to the taking of his
19 money ‗and yet protest in his own heart‘ against its being taken.‖ (quoting People v. Peck, 43
20 Cal. App. 638, 645 (Cal. Ct. App. 1919))).
21
At trial, A.T. testified regarding the money and property taken from him as follows:
22
[PROSECUTOR:] Q. All right. And what happened once you enter
the living room?
23
26
[A.T.:] A. Well once we enter the living room I believe it is Anaya
and another individual stayed at the window looking out the
window while I got encircled inside by Mr. Wolfe, Delgado,
Pompa and another individual, I don‘t remember his name or
actually I don‘t recall him at all. Even knowing it. I got in the
circle there, then I was hit in the face.
27
...
28
Q. Okay. Now let‘s back up because that was a lot of information.
24
25
23
2
So you get punched, some of the guys in there are saying get back
in the circle and Mr. Wolfe says round everything up, this guy
owes money and he is pointing at you pretty much?
3
A. Yeah.
4
Q. Well obviously. How, was that right after the punch pretty
much?
1
5
A. Yeah, yeah.
6
7
Q. Okay. And do people start going and taking property at that
point?
8
A. Yes.
9
Q. Do they start going through the house?
10
A. Yes.
11
Q. Okay. And did you have any property at the house?
12
A. Some, yes.
13
14
Q. Okay. And but most would it be fair to say that most of the
items in there were your aunt‘s and your uncle‘s?
A. Yes, her house, it is her house, of course.
15
Q. Now did you have any money on you as well?
16
A. Yes.
17
Q. And if you recall approximately how much money?
18
A. I believe it was 200? 200 something.
19
Q. 200 some dollars?
20
A. Yes.
21
Q. Did you try to give that money to them?
22
A. Yes.
23
Q. Now was that taken from you or did you hand it over?
24
A. It was taken. It was handed over.
25
Q. All right. You handed it over?
26
A. Yes.
27
Q. Did you feel at that moment that you had any choice?
28
A. No. No.
24
1 (3 RT6 107–08, 111–12).
Viewing the record in the light most favorable to the prosecution, a rational trier of fact
2
3 could have found true beyond a reasonable doubt that Petitioner committed extortion. The trial
4 testimony revealed that soon after A.T. was encircled by Petitioner and his associates and
5 punched in the face, A.T. handed over approximately $200 because he felt that at that moment he
6 had no choice. On the basis of A.T.‘s testimony and presuming all inferences were made in favor
7 of the prosecution, a rational trier of fact could find that A.T. consented to the taking of the
8 money, albeit it was a coerced and unwilling consent. Jackson ―makes clear that it is the
9 responsibility of the jury—not the court—to decide what conclusions should be drawn from
10 evidence admitted at trial. A reviewing court may set aside the jury‘s verdict on the ground of
11 insufficient evidence only if no rational trier of fact could have agreed with the jury.‖ Cavazos v.
12 Smith, 132 S. Ct. 2, 4 (2011) (per curiam). Under this deferential standard of judicial review, the
13 Court finds that a rational trier of fact could find the essential elements of extortion beyond a
14 reasonable doubt. As it is ―perfectly clear‖ that Petitioner does not raise a colorable federal due
15 process claim with respect to the sufficiency of the evidence supporting his extortion conviction,
16 the Court may deny this claim on the merits pursuant to 28 U.S.C. § 2254(b)(2).
17
C. Juror Misconduct
18
In his fourth claim for relief, Petitioner asserts that the trial court violated his right to a
19 fair and impartial jury by not granting a mistrial or excusing a juror who expressed to her father
20 and other jurors her fears arising from the purported actions of an audience member. (ECF No. 1
21 at 16). Respondent argues that under AEDPA‘s deferential standard of review, the state court
22 reasonably denied Petitioner‘s claim. (ECF No. 14 at 52–53).
This claim was presented on direct appeal to the California Court of Appeal, Fifth
23
24 Appellate District, which denied the claim in a reasoned decision. The claim also was raised in
25 the petition for review, which the California Supreme Court summarily denied. The Court
26 presumes that the California Supreme court adjudicated the claim on the merits. See Richter, 562
27 U.S. at 99. The Court reviews the last reasoned state court opinion. See Brumfield, 135 S. Ct. at
28
6
―RT‖ refers to the Reporter‘s Transcript on Appeal lodged by Respondent on October 13, 2015. (ECF No. 15).
25
1 2276; Ylst, 501 U.S. at 806.
2
In denying Petitioner‘s juror misconduct claim, the California Court of Appeal stated:
3
Defendants contend the judgments must be reversed because a juror engaged in
prejudicial misconduct. More specifically, defendants assert the juror committed
misconduct by speaking to her father about fear she experienced as a result of the
purported actions of an audience member, and by discussing same with her fellow
jurors. The People assert there was no misconduct and that, in any event, there
was no substantial likelihood any juror was biased against defendants.
4
5
6
7
A. The Relevant Background
14
On the fourth day of trial, the court convened in chambers to discuss an issue
brought to its attention regarding a juror. The trial court explained that another
judge was approached by a friend who advised his daughter was serving as a juror
on a gang case. The individual relayed that his daughter was afraid or fearful
because a female audience member watched her as she took notes. The court was
not certain the juror was in fact seated on its particular jury, but sought feedback
from counsel. The prosecutor volunteered that he was aware the action was ―the
only gang trial‖ ongoing; counsel for defendant Wolfe, Mr. Reyes, was of a
similar understanding. Thus, it was suggested an inquiry be made of the juror
regarding her fear and the communication of that fear. The court agreed to do so
after noting it had not witnessed any inappropriate behavior on the part of any
audience member. Specifically, the court noted the presence of a female audience
member—later determined to be the mother of defendant Wolfe‘s girlfriend—
who ―simply sat there and watched the proceedings.‖
15
Thereafter, Juror 104 was questioned as follows:
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―JUROR 104: I am 30 years old and my dad is still calling people
isn‘t he?
―THE COURT: Good morning to you.
―JUROR 104: Good morning.
―THE COURT: We are all convened and out of the presence of the
jury panel except for juror number 104. All 3 lawyers in this case
are present along with court staff.
22
―First and foremost we are not here to punish you or embarrass you
in any way, I want to make sure you understand that.
23
―JUROR 104: Uh-huh.
24
―THE COURT: But by your comment as you come through the door
I think you have some idea why I have to talk to you.
25
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27
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―JUROR 104: Uh-huh, yeah.
―THE COURT: It has been reported to me through a channel that
perhaps through and if the persons are wrong you are going to
correct me, a father in law or a father.
26
1
―JUROR 104: Father.
2
―THE COURT: Indicated that you spoke with him.
3
―JUROR 104: Uh-huh.
4
―THE COURT: Regarding, I am going to say what I heard.
5
―JUROR 104: Okay.
6
7
―THE COURT: That you are feeling fearful in this case because you
believe some one in the audience is staring at you while taking
notes.
8
―JUROR 104: Uh-huh.
9
―THE COURT: And that‘s the end and all of what I heard.
10
―JUROR 104: Uh-huh. I just wasn‘t sure if—
11
―THE COURT: Let me real quick. So first of all I want to confirm
that you did make that comment to a relative, is that correct?
12
13
14
15
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17
―JUROR 104: Uh-huh, my father.
―THE COURT: Your father?
―JUROR 104: Yes.
―THE COURT: Did you say anything else to him?
―JUROR 104: No.
18
―THE COURT: All right. Did you talk to him about the facts of the
case?
19
―JUROR 104: No.
20
―THE COURT: Did you discuss it with anybody else except your
father?
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―JUROR 104: My husband and my father were there.
―THE COURT: Okay. Did you express that sentiment to any other
juror members?
―JUROR 104: No, it has been discussed in there that that feeling of
feeling threatened or you know, nervous being in the situation,
being the type of case that it is, just, and the one particular
audience member, you know, we have all noticed.
―THE COURT: Who is the person that you—
―JUROR 104: It is a lady, she was in an orange shirt yesterday, long
hair, there was only a lady and a gentleman.
27
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―THE COURT: And what do you believe she is doing?
―JUROR 104: I have no idea because I don‘t know if she is part of a
gang or—
―THE COURT: No. No, but you indicated you were fearful because
she is doing something.
―JUROR 104: Just staring to me, to me she is like, okay is she going
to—I am going to cry, I don‘t even want to be in here. I just feel
like maybe—
―THE COURT: You know what, you are doing marvelously well.
We will get you some Kleenex.
―JUROR 104: I don‘t want her to be telling somebody else or there
is a girl in a blue and white dress and, you know, follow her or you
know, whatever else. It is just scary any time you are dealing with
something like that.
―THE COURT: Okay. I will say it again, you have done nothing
wrong, okay?
―JUROR 104: Uh-huh.
―THE COURT: I need to ask you, a couple of things come to mind
based upon your statements. You say that several other members
of the jury have expressed similar sentiment, is that correct?
―JUROR 104: Uh-huh, just a nervousness of the case and it, you
know, not knowing if we are being, you are going to be watched or
whatever else, you know what I mean?
―THE COURT: Yes. And have they expressed the same sentiment
with respect to somebody in the audience or related to the
defendant in the case?
―JUROR 104: No. Audience.
―THE COURT: Anybody else besides that woman?
―JUROR 104: Another person said that the gentleman, I didn‘t ever
pay attention to the man because to me he was always looking
forward, but the lady, I felt like every time I looked up her eyes
were just right in the juror box, you know, paying attention to us.
―THE COURT: The only word I know is dogging, do you feel like
she is dogging you?
―JUROR 104: Yes. I mean in a sense it was rude to me, I thought
she was loaded out of her mind, you know, so just, I felt very
uncomfortable.
―THE COURT: And other jurors have expressed the same?
28
28
1
―JUROR 104: Uh-huh.
2
―THE COURT: I am not calling you back in here to—
3
―JUROR 104: I want you to know that I am enjoying this, like when
my dad, called him, today I called him, but I mean I am doing it
but there is just that aspect of the case.
4
6
―THE COURT: All right. I am not going to ask you to rat out any
individual members but I need to know. You have said generally
several people have expressed that.
7
―JUROR 104: Uh-huh.
8
―THE COURT: Approximately how many?
9
―JUROR 104: I would say 2 or 3. I mean other people have maybe
talked off of it but 2 or 3 have directly.
5
10
11
12
―THE COURT: So you would say several?
―JUROR 104: Uh-huh.
14
―THE COURT: I need to ask you is there anything about the trial, is
there anything about the attorneys‘ conduct or what they have said,
is there anything about the way that the case has been conducted,
setting aside this woman.
15
―JUROR 104: Uh-huh.
16
―THE COURT: That is causing you to be fearful?
17
―JUROR 104: Not at all.
18
―THE COURT: So nothing else at all.
19
―JUROR 104: No.
20
―THE COURT: And whether any reports or any comments made to
your knowledge by anybody else in the jury panel when you are
talking or otherwise that related a fear or concern outside this
woman that you have identified?
13
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―JUROR 104: No, I think just seeing that, the woman in there and
the man, it makes them fearful that then you know that they could
be following us or something like that, we know that the
defendants and the other people are on lock down. I don‘t know
that but, you know what I mean, that they are watched and I am not
afraid of them. I am not. To me those people walk out the same
time I may walk out and you know, I mean I walked around before
I walked to my car and you know, I don‘t want any of that.
―THE COURT: All right. If I will assure you and assure everybody
in the jury that we will take extra precautions to make sure that you
will not have contact with people in the audience who you believe,
29
2
I have no idea who this woman is. Oh, that is not true. I have an
idea now because one of the attorneys suggested they may know
who that person is.
3
―JUROR 104: Uh-huh.
4
―THE COURT: But so that you will not have contact with anybody
in the audience when you come into and leave court on recess or
otherwise, but you believe that would make you feel more
comfortable.
1
5
6
7
―JUROR 104: Yeah, because there is no way to insure that that
person can‘t be, because it is open to the public, right?
8
―THE COURT: Sure.
9
―JUROR 104: That is where you are just screwed, I mean I don‘t
know.
10
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14
―THE COURT: I have to say something. I have asked questions, I‘m
going to say something. I guess I am the only person whose got a
straight on view of the audience and although my attention is
appropriately and properly focused on the witnesses or the lawyers,
I look up at the audience dozens of times. I have not seen anybody
act or say or do anything inappropriate.
―JUROR 104: Uh-huh.
15
―THE COURT: My job is to call that immediately and I would get on
somebody immediately even if I felt there was the hint of that.
16
―JUROR 104: Uh-huh.
17
18
―THE COURT: And I haven‘t seen anything so I want to assure you
it is not like I am oblivious to that or that is not something that I
am always concerned about in any case.
19
―JUROR 104: Uh-huh.
20
―THE COURT: I also will recommunicate with you what I did in the
jury panel initially that there is nothing specific about this case that
is different than a case we did last week and the case we did next
week, somebody is charged with crimes.
21
22
23
―JUROR 104: Uh-huh.
25
―THE COURT: And this is the process that we used and if I felt
otherwise I would be up front with everybody. I would not want
you to be in a situation different than a friend of mine or a relative
or otherwise, and I want you to hear that from me. Okay?
26
―JUROR 104: Okay.
27
―THE COURT: Counsel, are there any questions that you would like
me to address with juror number 104 before she is excused back to
the jury room?
24
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―MR. REYES: No, Your Honor[.]
―THE COURT: Mr. Meyer.
―MR. MEYER: No, Your Honor.
―THE COURT: Mr. Bartlett?
―MR. BARTLETT: No. Thank you.
―THE COURT: Thank you ma‘am. Thank you for your honesty.
―JUROR 104: Uh-huh.
―(Juror 104 leaves chambers.)
―THE COURT: We remain on the record. Gentlemen, any
comments?
―MR. BARTLETT: I feel that I need to discuss this with my client. I
would like to just take a 2 to 5-minute break. Let him—
―THE COURT: You know what I should have said? Could you have
her come back here again? I need to tell her not to talk about what
we just talked about.
―[PROSECUTOR]: Can we have a discussion off the record?
―(Juror 104 returns to chambers.)
―JUROR 104: I was going to let you know she is out there today,
just far left.
19
―THE COURT: All right. I am supposed to tell you please do not,
remember the admonition, please do not discuss this conversation
with any other members of the jury.
20
―JUROR 104: Okay.
21
―THE COURT: Thank you.
22
―JUROR 104: You got what I said?
23
―THE COURT: I did.
―(Juror 104 leaves chambers.)
18
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26
―THE COURT: Do you want to go off the record, gentlemen?
―[PROSECUTOR]: Yeah.
―(Discussion held off the record.)‖
27
28
The court then broadened its inquiry by questioning each remaining juror
separately. Juror Nos. 122, 35, 110, 107, 27, 116, 46, 132, 11, 120 and 124
31
1
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7
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14
indicated they were not fearful and that nothing had happened during the trial to
cause them fear. Some had heard other jurors discuss concerns about an audience
member staring at the jury. Others had not personally perceived such action by the
audience member. Each one indicated he or she could remain fair and impartial.
Juror No. 18 admitted being a little unnerved by a woman in the audience who
was staring the day prior, but indicated she could be fair and impartial. Juror
No. 123 indicated that a spectator caused her to be fearful because the spectator
―intensely watch[ed]—the jury.‖ She was uncomfortable because she felt she was
being stared at. She did not discuss her fear with others, but had overheard other
jury members expressing their concerns. Despite being a little nervous, she
believed she could be fair and impartial. Juror No. 27 understood another juror‘s
concern to involve her fear walking to a ballgame, and agreed with the trial court
that the fear was the result of ―her attention perhaps is heightened because of
what‘s going on here ….‖
Once the jurors were excused, the court noted it had ―voir dired each and every
member of the jury panel and the 2 remaining alternates. Each and every member
of the jury panel after discussion has fully and freely represented that they remain
and are still able to be a fair and impartial jurors [sic] in this case and render a
decision according to the instructions and the law ….‖ The court was of the
opinion that ―nothing has transpired in this case that has sacrificed the due
process, procedural, statutory and other constitutional rights‖ of defendants. It
then invited comment from counsel. At the request of counsel for defendant
Anaya and with the stipulation of counsel for defendant Wolfe and the People, an
unreported discussion was held in chambers. When proceedings resumed, the jury
was present. The issue was briefly noted before the jury was released on noon
recess. Shortly thereafter, counsel for defendant Wolfe moved for a mistrial:
15
―MR. REYES: I make a motion for mistrial, Your Honor.
16
―THE COURT: On what basis?
17
―MR. REYES: On the basis that in my opinion the jury in general
has been tainted by everything we discussed this morning. The
specific comment that concerns me at the end was that one of the
jurors and in the individual questioning on him had indicated that
some one had mentioned something in addition to which was a
statement that one of the jurors had made a comment about being
afraid when they went to the ball game last night, walking at the
ball game. None of the jurors made that comment. That they in fact
had said that to the other jurors.
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―So obviously on top of what already has been going on there is
clearly feelings, comments that are being made, they are not, that
were not disclosed to us when we did the voir dire concerning that
specific issue and that to me raises a m[o]re serious concern is that
they are not being forthcoming let‘s say with their total feelings.
―And I understand that each of them have said yes, they can be fair
and impartial jurors, but based on the taint that has already
happened I just feel this point that edge in terms of fairness has just
been tilted and at this point I don‘t feel my client can have a fair
trial.
―THE COURT: Mr. Bartlett, do you wish to be heard?
32
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―MR. BARTLETT: On behalf of [defendant] Anaya we will join in
the request and comments of Mr. Reyes.
3
―THE COURT: Mr. Meyer, do you wish to be heard on the record?
4
―MR. MEYER: Based on Mr. Reyes did acknowledge that we
individually pulled each juror on the record after a questioning,
they acknowledged that they could still be fair and impartial
jurors and that any concern they had was extraneous to any facts
or evidence that have been presented in this case thus far, rather it
was a civilian who was watching the trial and they said that they
could essentially remove that from their head and still judge this
trial fairly and impartially.
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―THE COURT: I can‘t imagine how I could have been more
exhaustive in terms of the supplemental voir dire of this jury
panel. We took about an hour and a half to individually question
each and every juror, had to do with their own personal
experience and the experience and participating in or listening to
conversation.
―Not one juror expressed any concern or opinion that they would
not be able to fulfill their duties in this case. Not one juror
changed their representation to you and to this court that they
would be fair and impartial and wait until all the evidence is in
before making a decision. Not one juror said that he or she would
be influenced in any way by this very relatively small issue. And I
will not repeat what‘s been talked about.
―But the one juror allegedly talked to her father without
identifying the case, without discussing the facts of this case and
most importantly without getting any input from outside this court
proceeding about her job or about the facts relaying what she
relayed. This jury pool has not been tainted by anything that has
happened outside this courtroom and quite frankly, other than
what has been thoroughly discussed nothing that has gone on in
this courtroom.
―The comment that you related to or mentioned, Mr. Reyes, I
think is simply one that was reflected by I don‘t remember her
number, the juror who came in and said she and perhaps other
jurors are concerned I think the quote was no more than they were
at the beginning given the nature of the charges of this case and
the comment about walking to a baseball park and being
concerned wasn‘t tied at all to these defendants or anybody else in
this process.
―I do understand the extended portion of your concern and that is
nobody else relayed that information. But I don‘t believe that is a
reflection take any one of these jurors are testifying under penalty
of perjury wrongly or making misrepresents to this court about
what has gone on and their ability to sit on the jury and be fair and
impartial.
28
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―All my questions lead up to them to the ultimate question to each
juror and that is can you be fair and impartial in this case and each
one to a person said that they could and would.
―I respect your opinion in all matters but however I must make a
determination as to whether or not this jury has been tainted in
any way or even the probability of that and I cannot find such
given what we have done in this case and on that basis your
motion is respectfully denied.‖
6
B. The Applicable Law
7
―An accused has a constitutional right to a trial by an impartial jury. [Citations.]
An impartial jury is one in which no member has been improperly influenced
[citations] and every member is ‗―capable and willing to decide the case solely on
the evidence before it‖‘ [citations].‖ (In re Hamilton (1999) 20 Cal.4th 273, 293294.)
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―A trial court should grant a mistrial only when a party‘s chances of receiving a
fair trial have been irreparably damaged, and we use the deferential abuse of
discretion standard to review a trial court ruling denying a mistrial. [Citation.]‖
(People v. Bolden (2002) 29 Cal.4th 515, 555.) ―‗A mistrial should be granted if
the court is apprised of prejudice that it judges incurable by admonition or
instruction. [Citation.] Whether a particular incident is incurably prejudicial is by
its nature a speculative matter, and the trial court is vested with considerable
discretion in ruling on mistrial motions. [Citation.]‘ [Citation.]‖ (People v.
Wallace (2008) 44 Cal.4th 1032, 1068.) It is not an abuse of discretion when a
trial court denies a motion for mistrial after being satisfied that no injustice has
resulted and the party‘s chances of receiving a fair trial have not been irreparably
damaged. (People v. Eckstrom (1986) 187 Cal.App.3d 323, 330.)
―‗When a trial court is aware of possible juror misconduct, the
court ―must ‗make whatever inquiry is reasonably necessary‘‖ to
resolve the matter.‘ [Citation.] Although courts should promptly
investigate allegations of juror misconduct ‗to nip the problem in
the bud‘ [citation], they have considerable discretion in
determining how to conduct the investigation. ‗The court‘s
discretion in deciding whether to discharge a juror encompasses
the discretion to decide what specific procedures to employ
including whether to conduct a hearing or detailed inquiry.‘‖
(People v. Prieto (2003) 30 Cal.4th 226, 274.)
Section 1089 ―authorizes the trial court to discharge a juror at any time before or
after the final submission of the case to the jury if, upon good cause, the juror is
‗found to be unable to perform his or her duty.‘‖ (People v. Bennett (2009) 45
Cal.4th 577, 621.) ―Once a trial court is put on notice that good cause to discharge
a juror may exist, it is the court‘s duty ‗to make whatever inquiry is reasonably
necessary‘ to determine whether the juror should be discharged. [Citation.]‖
(People v. Espinoza (1992) 3 Cal.4th 806, 821.) ―Such an inquiry is central to
maintaining the integrity of the jury system, and therefore is central to the
criminal defendant‘s right to a fair trial.‖ (People v. Kaurish (1990) 52 Cal.3d
648, 694.) Whether to remove the juror is left to the discretion of the trial court,
whose decision for removal is reviewed by ―asking whether the grounds for such
removal appear in the record as a demonstrable reality.‖ (People v. Thompson
(2010) 49 Cal.4th 79, 137.)
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Here, as illustrated above, the trial court conducted an immediate and thorough
inquiry into any potential juror misconduct. Juror No. 104 in particular was
extensively questioned.
There was no prejudicial misconduct here. As established by the trial court‘s
inquiry, Juror No. 104 did not talk to her father about facts relating to the case or
even identify the particular case. Rather, she expressed only her fear of an
audience member. A jury is instructed that it shall not converse about ―any subject
connected with the trial.‖ (§ 1122, subd. (a)(1).) We find that an audience member
or member of the public observing the trial proceedings is not a ―subject
connected with the trial.‖ (See, e.g., People v. Loot (1998) 63 Cal.App.4th 694,
697 [prosecutor was a ―subject connected with the trial‖ and thus juror‘s
discussion of his personal life with nonjuror was misconduct].) For that same
reason, Juror No. 104‘s conversations with other jurors about any fear perceived
after having been stared at by a member of the audience—and even their own
similar apprehension—is not a ―subject connected with the trial.‖ Moreover, Juror
No. 104 specifically indicated that the fear she was expressing did not relate to
defendants. She also indicated that nothing else that had occurred during the
course of the trial served to cause her fear. The trial court was satisfied with Juror
No. 104‘s responses, as well as the responses of the entire jury panel following its
inquiry. Notably too, counsel for defendants did not ask additional questions of
any panel member despite being given an opportunity to do so. Lastly, the trial
court stated that it had not observed any troubling behavior by the spectator in
question.
Here, following its exhaustive inquiry, the trial court noted that no juror expressed
any concern that he or she would be unable to fulfill his or her duties, no juror
indicated he or she was incapable of being fair and impartial or incapable of
waiting until all the evidence had been admitted before making a decision, and no
juror indicated he or she would be influenced ―in any way by this very relatively
small issue.‖[n.22] As a result, the trial court concluded that the jury had not been
―tainted in any way or even the probability of‖ having been tainted by the conduct
of Juror No. 104 or her fellow jurors in conversing about the staring audience
member. We defer to the observations and credibility determinations of the trial
court. (People v. Pride (1992) 3 Cal.4th 195, 260.)
[n.22]
The jury was instructed that it ―must use only the evidence
that was presented in this courtroom. ‗Evidence‘ is the sworn
testimony of witnesses, the exhibits admitted into evidence, and
anything else I told you to consider as evidence.‖ Perceptions
related to possible actions by members of the audience are not
evidence to be considered by the jury.
In People v. Panah (2005) 35 Cal.4th 395, the defendant‘s supporters ―were
following or ‗shadowing‘ the jurors during breaks in their deliberations, while
others, including his mother, were clustering near the jury while it was assembling
on breaks.‖ (Id. at p. 480.) The trial court reported that a juror had told the bailiff
she was intimidated by the presence of these supporters. A male juror was
overheard expressing relief that the jury did not have to assemble on a certain
floor, ―presumably to avoid contact with defendant‘s supporters.‖ (Ibid.) The
Supreme Court concluded that the jurors‘ ―understandable concern [did] not
amount to misconduct.‖ There was no evidence the jury was biased against the
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defendant or that any bias affected the jury‘s deliberations, and nothing in the
record supported the defendant‘s claim that he was denied an impartial jury.
(Ibid.) We conclude similarly here. Following the trial court‘s thorough inquiry,
there is no evidence the jury was biased against defendants or that any bias
affected the jurors‘ deliberations, denying defendants the right to an impartial
jury.
Defendants contend ―the record contains no statement by juror #104 that despite
her fears about the audience member, she could remain fair and impartial as a
sitting juror,‖ and that ―a presumption that she would have confirmed her lack of
bias would amount to sheer speculation.‖ We agree with the former and disagree
with the latter.
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As evidenced by the quoted portion of the inquiry provided above, Juror No. 104
was not expressly asked whether she could remain fair and impartial.
Nevertheless, it is not ―sheer speculation‖ to conclude she would have confirmed
her lack of bias had she been asked. During the proceedings concerning this
incident, the trial court stated on several occasions that each juror said he or she
could remain fair and impartial. Neither defense attorney objected to the accuracy
of the court‘s statements. In fact, in arguing his motion for mistrial, attorney
Reyes expressly acknowledged ―that each of them have said yes, they can be fair
and impartial jurors.‖ The prosecutor reiterated this sentiment in arguing against
the motion: ―[W]e individually pulled each juror on the record after a questioning,
they acknowledged that they could still be fair and impartial jurors.‖ Given the
foregoing comments and circumstances on this record, it is not speculation to
conclude Juror No. 104 would have affirmed her ability to remain fair and
impartial despite her apprehension concerning the audience member.[n.23]
[n.23]
The audience member at issue apparently elected to forgo
attending and observing future trial proceedings.
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Even assuming for the sake of argument misconduct occurred here, our high court
has explained that
―‗before a unanimous verdict is set aside, the likelihood of bias
under either test must be substantial …. [T]he criminal justice
system must not be rendered impotent in quest of an ever-elusive
perfection. The jury system is fundamentally human, which is both
a strength and a weakness. [Citation.] Jurors are not automatons.
They are imbued with human frailties as well as virtues. If the
system is to function at all, we must tolerate a certain amount of
imperfection short of actual bias. To demand theoretical perfection
from every juror during the course of a trial is unrealistic.‘
[Citation.]‖ (People v. Danks (2004) 32 Cal.4th 269, 304
[unsolicited comments from one juror‘s ―pastor, [another juror‘s]
conversation with her pastor, and the introduction of the Bible
passages to the jury room were misconduct, but … this misconduct
was not prejudicial‖].)
This record reveals only ―imperfection short of actual bias.‖ Among the factors to
be considered when determining whether the presumption of prejudice has been
rebutted are ―‗the nature and seriousness of the misconduct, and the probability
that actual prejudice may have ensued.‘‖ (People v. Von Villas (1992) 11
Cal.App.4th 175, 256.) The nature and seriousness of the assumed misconduct is
minimal. Juror No. 104‘s mention to her father of her fear of an audience
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member, and the discussions had amongst a few of the panel members on the
same subject, do not directly relate to the subject of the trial or even to
defendants. The comments did not concern facts elicited during trial. Thus the
nature and seriousness of any assumed misconduct is slight. A review of the entire
record finds no reasonable probability of actual harm to defendants. Accordingly,
we also find the trial court did not err in denying defendants‘ motion for mistrial.
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(ECF No. 1 at 106–20).
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In Smith v. Phillips, the Supreme Court declared:
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[D]ue process does not require a new trial every time a juror has
been placed in a potentially compromising situation. Were that the
rule, few trials would be constitutionally acceptable. The
safeguards of juror impartiality, such as voir dire and protective
instructions from the trial judge, are not infallible; it is virtually
impossible to shield jurors from every contact or influence that
might theoretically affect their vote. Due process means a jury
capable and willing to decide the case solely on the evidence
before it, and a trial judge ever watchful to prevent prejudicial
occurrences and to determine the effect of such occurrences when
they happen. Such determinations may properly be made at a
hearing like that ordered in Remmer7 and held in this case.
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455 U.S. 209, 217 (1982). Smith involved a juror in a state criminal trial who, during the trial,
applied for an investigator position in the state prosecutor‘s office. Id. at 212. Although the
prosecuting attorneys knew of the juror‘s application, they chose not to inform the court or the
defense until after the jury returned the verdict. Id. at 212–13. After holding a hearing in which
the juror and prosecutors testified, the state trial court denied the defendant‘s motion to vacate
his conviction, finding that the juror was not biased and that the evidence did not suggest a
―sinister or dishonest motive‖ on the part of the prosecutors. Id. at 213–14. The Supreme Court
held that the post-trial hearing satisfied due process and that ―[o]f equal importance, this case is a
federal habeas action in which Justice Birns‘ findings are presumptively correct under 28 U.S.C.
§ 2254(d).‖ Id. at 218.
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Here, the trial court promptly held a hearing after learning of Juror No. 104‘s comments
to her father regarding her concerns about the audience member. When Juror No. 104 revealed
that other jurors had expressed similar sentiments, the trial court proceeded to question all the
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Remmer v. United States, 347 U.S. 227 (1954) (finding reversible error where the district court did not conduct a
hearing on a motion for new trial based on a third-party communication to a juror that he could profit by bringing in
a verdict favorable to the defendant that was followed by a mid-trial investigation of the incident by the Federal
Bureau of Investigation).
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1 jurors and alternate jurors. After questioning each juror, the trial court concluded that ―[e]ach and
2 every member of the jury panel after discussion has fully and freely represented that they remain
3 and are still able to be a fair and impartial jurors [sic] in this case and render a decision according
4 to the instructions and the law that I gave them.‖ (4 RT 239). The California Court of Appeal
5 found that the trial court conducted a proper and ―exhaustive inquiry‖ into the juror misconduct
6 and ―defer[red] to the observations and credibility determinations of the trial court‖ that the
7 jurors remained fair and impartial. (ECF No. 14 at 117, 118).
The Court finds that the California Court of Appeal‘s decision is not contrary to, or an
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9 unreasonable application of, clearly established federal law.8 After learning of the juror
10 misconduct, the trial court conducted a hearing in compliance with Remmer and Smith. The state
11 court‘s conclusion that the jurors remained fair and impartial is not an unreasonable
12 determination of fact in light of the record. The California Court of Appeal‘s denial of the juror
13 misconduct claim is not ―so lacking in justification that there was an error well understood and
14 comprehended in existing law beyond any possibility for fairminded disagreement.‖ Richter, 562
15 U.S. at 103. Accordingly, Petitioner is not entitled to habeas relief on this claim and it must be
16 denied.
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IV.
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RECOMMENDATION
Accordingly, the Court HEREBY RECOMMENDS that the petition for writ of habeas
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20 corpus be DENIED.
This Findings and Recommendation is submitted to the assigned United States District
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22 Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local
23 Rules of Practice for the United States District Court, Eastern District of California. Within
24 THIRTY (30) days after service of the Findings and Recommendation, any party may file
25 written objections with the court and serve a copy on all parties. Such a document should be
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Although the California Court of Appeal did not cite to any federal authority on this issue, the pertinent inquiry is
whether it ―reasonably applied the principles contained in relevant Supreme Court precedent.‖ Parker v. Small, 665
F.3d 1143, 1148 (9th Cir. 2011). The Supreme Court has noted that a state court is not required to cite or even be
aware of its cases under § 2254(d). Early v. Packer, 537 U.S. 3, 8 (2002).
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1 captioned ―Objections to Magistrate Judge‘s Findings and Recommendation.‖ Replies to the
2 objections shall be served and filed within fourteen (14) days after service of the objections. The
3 assigned District Judge will then review the Magistrate Judge‘s ruling pursuant to 28 U.S.C. §
4 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may
5 waive the right to appeal the District Court‘s order. Wilkerson v. Wheeler, 772 F.3d 834, 839
6 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
9 Dated:
May 6, 2016
UNITED STATES MAGISTRATE JUDGE
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