Larry Bailey-Banks v. W.L. Montgomery
Filing
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FINDINGS and RECOMMENDATIONS recommending that Court Deny 1 Petition for Writ of Habeas Corpus signed by Magistrate Judge Jeremy D. Peterson on 3/8/2019. Referred to Judge Anthony W. Ishii. Objections to F&R due within Fourteen (14) Days. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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LARRY BAILEY-BANKS,
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Petitioner,
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v.
W.L. MONTGOMERY,
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Respondent.
No. 1:15-cv-01839-AWI-JDP (HC)
FINDINGS AND RECOMMENDATIONS
THAT COURT DENY PETITION FOR WRIT
OF HABEAS CORPUS
OBJECTIONS DUE IN 14 DAYS
ECF No. 1
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Petitioner Larry Bailey-Banks, a state prisoner without counsel, seeks a writ of habeas
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corpus under 28 U.S.C. § 2254. Petitioner raises numerous claims, including prosecutorial
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misconduct, ineffective assistance of counsel, errors in jury instructions, and violations of due
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process. We recommend that the court deny the petition.
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I.
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Background
Petitioner challenges his conviction and sentence for aiding and abetting burglary and
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robbery. According to the government, petitioner drove his codefendants Rayshaun Brown and
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Andrew Smith to an apartment building. Petitioner waited in a car while Brown and Smith broke
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into the apartment and robbed a victim. All three individuals were members of the West Side
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Crips. Smith entered into a plea agreement; petitioner and Brown pleaded not guilty and were
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then tried together. The jury found petitioner guilty of aiding and abetting first-degree robbery
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(Count 1), aiding and abetting first-degree burglary (Count 3), unlawful participation in a criminal
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street gang (Count 4), receiving stolen property (Count 6), and being an accessory after the fact
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(Count 7). Petitioner had two prior strikes under California’s Three-Strikes Law. The trial court
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sentenced petitioner to an aggregate term of twenty-six years to life, plus a ten-year enhancement
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for gang activity and another ten-year enhancement because petitioner had a prior felony.
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CT 2:423, 428.1
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We set forth below the facts of the underlying offenses, as stated by the California Court
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of Appeal, Fifth District. A presumption of correctness applies to these facts. See 28 U.S.C. §
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2254(e)(1); Crittenden v. Chappell, 804 F.3d 998, 1010-11 (9th Cir. 2015).
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On October 21, 2010, Jacqueline Garcia and her children lived in an
apartment on Pacheco Road and Eve Street in Bakersfield. At some
point before noon, Garcia was resting in bed, and her children were
not home. She was awakened by noise coming from her kitchen
window, and the sound of someone falling from a height. Garcia
testified two young men suddenly appeared in her bedroom. One
man put his hand over Garcia’s eyes and mouth, held a gun to her
head, and pushed her to the floor. The gunman told her to get up,
and he took her around the apartment. The gunman told his
accomplice to start looking for stuff. Garcia could not speak
English and could not understand what they were looking for.
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Garcia testified the men looked through her home and made a
“disaster of the place.” The gunman seemed to be giving orders to
the second man about what to do. The gunman continued to hold
the gun to Garcia’s head. The second man found a small safe.
Garcia stored documents and jewelry in it, but it did not contain any
money. The safe was locked, however, and the culprits did not
know what was inside.
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After they found the safe, the gunman again forced Garcia to the
floor. She saw and heard the gunman pull back the slide and
chamber a round in the gun. She also heard a metallic sound. She
believed the gunman was going to kill her and thought she was
dead. However, the gunman did not fire and both men left the
apartment with the safe.
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All “CT” citations refer to the clerk’s transcript. All “SCT” citations refer to the supplements to
the clerk’s transcript. All “RT” citations refer to the reporter’s transcript. These documents have
been lodged with the court. See ECF No. 22.
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Discovery of the safe
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On the same day, Michael Bowen was cleaning out his apartment
on North Half Moon Drive in Bakersfield. He spent the morning
throwing out trash in the garbage can located in the alley behind his
apartment. Later in the afternoon, he noticed a second garbage can
had been pulled next to the garbage can he had been using. The
second garbage can had not been there earlier in the day.
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Bowen opened the lid and looked inside the second garbage can. He
saw a small safe that appeared to have been slammed or pried open.
There were numerous papers and documents inside and around the
safe. Bowen called the police.
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At 2:45 p.m., Officers Ashby and Juarez responded to Bowen’s
location in the alley. They looked through the safe and found
numerous documents that belonged to Garcia. The same garbage
can that contained the safe also contained utility bills addressed to
defendant Bailey and his girlfriend, Tiffany Jackson.
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Bailey yells at Brown at the police department
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Bailey and Brown were arrested. Brown had a cell phone which
contained a photograph of him making a hand gesture of the letter
“W,” and a separate photograph that showed the phrase “West
Side.”
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Both defendants were taken to the police department and placed in
separate but adjoining interrogation rooms, which had solid doors
and walls. These rooms were located within the larger squad room,
and the officers used them as holding cells. The defendants could
not see each other, but they knew they were in the adjoining rooms.
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Officers Woessner and Ashby removed Brown from the
interrogation room and interviewed him in another area adjacent to
the squad room. They asked Brown if he was involved in the
burglary/robbery at the apartment on Pacheco Road. Brown said he
did not have anything to do with it. The officers returned Brown to
the interrogation room adjacent to where Bailey was still being
held.
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Officer Juarez testified he was in the squad room, and Bailey and
Brown were in the adjacent interrogation rooms, when Juarez heard
Bailey yell something at Brown. Bailey’s voice was muffled but
loud enough to be heard by the officers in the squad room.
Officer Woessner testified he was also in the squad room and heard
Bailey talk to Brown in a loud voice through the wall, “something
to the effect of, ‘Tell those officers that I didn’t do anything,’ ” and
“ ‘You know my situation. I can’t get another case,’ or something
similar to that.”
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Shortly after the officers heard Bailey yell at Brown, Brown asked
to speak to Officer Woessner again. Brown was removed from his
interrogation room and questioned. Brown said he committed the
robbery with a man known as “Lil’ Rags” or “Baby Rags,” who
was later identified as Andrew Smith.4 Brown did not implicate
Bailey in any way. Instead, he said that Smith drove him to the
apartment building and parked on the corner of Eve Street. Smith
told Brown that someone lived in an apartment, and that person
sold crystal methamphetamine and had cash. Smith climbed
through the apartment’s kitchen window and opened the front door
for Brown. Smith pulled the gun and pointed it at the woman in the
apartment. Brown searched the apartment and found the safe.
Brown said he grabbed the safe, and they left the apartment. Brown
dropped the safe. Smith helped him carry it, and they went back to
Smith’s car. They drove to the alley and tried to open the safe.
Smith threw the safe against the ground.
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The GPS monitoring device on Bailey
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At the time of the crime, Bailey was on parole as a gang member,
and was required to wear a GPS monitoring device. The GPS
device showed the subject’s locations, and when the subject was
walking, traveling at a faster rate in a vehicle, or not moving at all.
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The officers retrieved Bailey’s GPS tracking data after Bailey had
been arrested. Bailey’s GPS tracking data showed that on the day of
the burglary/robbery, he was on Pacheco Road at 11:28 a.m., and
moving at 40 miles per hour, presumably in a vehicle. At 11:29
a.m., he was not moving and was stationary. At 11:32 a.m., he
moved to a different location. At 11:34 a.m., he was stationary, and
near the intersection of Pacheco Road and Pamela Street, which
was near Garcia’s apartment building. He remained at that location
until 11:41 a.m., when he moved north on Eve Street at 30 miles
per hour. At 11:51 a.m., he was moving at 24 miles per hour. At
11:52 a.m., he was not moving and remained stationary at a
residence in the area of North Half Moon Drive. At 11:57 a.m., he
was walking at one mile per hour. At 11:59 a.m., he was stationary
on North Half Moon Drive. At 12:03 p.m., he was moving on
Edgemont Drive at 32 miles per hour.
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GANG EVIDENCE
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Detective Travis Harless, a member of the Bakersfield Police
Department’s gang unit, testified as the prosecution’s gang expert
that Bailey, Brown, and Andrew Smith were members of the West
Side Crips. The West Side Crips had geographical subset gangs
which included 6th Street, Black Family, Q Court, Carnation Track,
and Turq Rag.
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The West Side Crips claim the color turquoise, the number six, and
the letters “W,” “WS,” and “WSC.” The gang’s primary activities
are murders, assaults, stabbings, shootings, carjackings, auto thefts,
burglaries, and drug sales.
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Lowell Park is in the middle of the West Side Crips’ territory, and
members of rival gangs are not allowed to enter the park. The gang
regularly uses the park for meetings and gang-related events,
including the annual “Hood Day” on June 6. Detective Eric Lantz
explained that on Hood Day, large numbers of the West Side Crips
“don their turquoise colors and black T-shirts, things like that, and
they will flood the Lowell Park and the surrounding areas” in the
heart of West Side territory. The event is held on June 6 since the
West Side Crips identify with “6/6,” referring to the 6th Street
subset gang, and the park is located on 6th Street.
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Bailey’s gang contacts
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The prosecution presented evidence that Bailey was an active
member of the West Side Crips when the instant offenses were
committed. Detective Lantz testified he had numerous contacts with
Bailey, and described him as a “significant” person in the West
Side Crips. In July and October 2006, Lantz had contacts with
Bailey while he was in the presence of known members of the West
Side Crips, including Clarence Wandick. Bailey had numerous
tattoos that signified the West Side Crips. He said his moniker was
“Skeeter,” and he admitted membership in the gang.
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Detective Lantz and other officers conducted surveillance during
the Hood Day events held by the West Side Crips at Lowell Park in
2009 and 2010. There were over 100 people at the park, including
known members of the West Side Crips. Bailey was present and
associated with other gang members.
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Bailey had been booked into county jail on 13 separate occasions.
He claimed to belong to or associate with the West Side Crips and
needed to be kept away from the rival Bloods and East Side Crips.
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Detective Harless testified about a predicate offense which involved
Bailey. On October 22, 2006, officers responded to a house within
the territory of the West Side Crips on the dispatch about a man
with a rifle. Bailey was present and detained, and the police
recovered a loaded .22–caliber rifle. Bailey admitted he was a
member of the West Side Crips and said his gang moniker was
“Skeeter Bob.” He was convicted of being a felon in possession of a
firearm and participating in a criminal street gang (case No.
BF116639A). Officer Harless believed he was an active gang
member at the time, based on his review of the police report and
conversation with the lead investigator.
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In January 2010, Detective Harless arrested Bailey for possession
of cocaine base; he was wearing a turquoise shirt and shoes.
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BAILEY’S DEFENSE
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Bailey’s trial testimony
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Bailey testified at trial that he socialized with the West Side Crips
when he was 14 years old. He became an associate when he was 16
years old and a member when he was 17 years old. He was
affiliated with the 6th Street subset of the West Side Crips. Bailey’s
gang moniker was “Skeeter” or “Skeeter Bob.” There were other
“Skeeters” in the gang. He was never called “Skee.”
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Bailey testified that Brown was his cousin, and he was not a
member of the West Side Crips or any other gang.
Bailey testified members of the West Side Crips sold drugs, and
committed robberies, burglaries, and shootings. Bailey’s primary
source of income was dealing rock cocaine, but he sold drugs to
support his family and not to benefit the gang. He denied that he
had “juice” or seniority within the gang.
Bailey was convicted of possession of rock cocaine for sale and
served a seven-year prison term. He was released in July 2004.
Within a few days, he violated parole by associating with gang
members, and he was returned to prison. He was again released on
parole but arrested and charged with possession of a rifle and rock
cocaine. Bailey testified the incident happened while he was
helping a friend move, and the contraband did not belong to him. In
2006, Bailey pleaded guilty to the weapon charge and admitted the
gang enhancement. He obtained his gang-related tattoos while he
was in prison so he could fit in.
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Bailey was released from prison in 2008. He moved out of the West
Side Crips territory and lived with his sister. He later moved into an
apartment with his fiancée, Tiffany Jackson, on North Half Moon
Drive.
Bailey testified that he had lost interest in the gang. He stopped
hanging out in their territory, covered his gang tattoos, and took
classes to become an oil field worker. He also enrolled in
Bakersfield College. Bailey claimed that a member could drop out
of an African–American gang for no reason without facing
retaliation. He covered a gang tattoo on his cheek by having a tattoo
artist perform a procedure so the tattoo became part of his skin tone.
He was in the process of that procedure when he was arrested in
this case.
Bailey disputed the officers’ testimony about Hood Day, and
testified the event was a neighborhood picnic and not a gang
activity. He admitted gang members attended the picnic at Lowell
Park, which was within the West Side’s territory. He denied that he
was at the event in 2010 because he would have violated parole
since gang members would have been there. Bailey claimed he was
at an amusement park in Southern California on that day.
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The charged offenses
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Bailey testified that on the morning of the burglary/robbery, he was
at his apartment on North Half Moon Drive with Tiffany Jackson
and their children. Brown, his cousin, was also there. Bailey was
not afraid to hang out with Brown since he was not a gang member.
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Bailey drove Brown to the residence where Brown’s family lived.
Brown needed to pick up some clothes. Brown’s father lived on
Pacheco Road near Pamela Street. Bailey and Brown were there for
five or six minutes.
Bailey testified that when they were at the Brown family’s house,
he met Andrew Smith for the first time. Smith asked for a ride to
get some marijuana. Bailey agreed. Bailey followed Smith’s
directions and drove Smith and Brown to Eve Street, near Pacheco
Road. Brown and Smith got out of the car and Bailey stayed with
the vehicle. Bailey testified he had no idea what Smith and Brown
were going to do at that location. They were there for six or seven
minutes. When Brown and Smith returned to the car, Bailey could
smell marijuana on them.
Bailey drove Brown and Smith back to his apartment and parked in
the alley, where the garbage cans were. Bailey stayed at his
apartment for 10 minutes and then left around 11:40 a.m. to run
more errands. Brown and Smith stayed at his apartment.
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Bailey testified he returned to his apartment around 2:00 p.m.
Tiffany Jackson and Brown were there. Smith was gone. After he
returned, Jackson told him the police were in the alley. Brown left
the apartment. Bailey admitted that he talked to Tiffany about what
to say to the police, and they agreed to give the same false story
about their activities that day.
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Bailey testified the police arrived a short time later and conducted a
parole search. The police asked Bailey where he had been that day,
and whether he was a member of the West Side Crips. Bailey told
them he wasn’t in the gang anymore. Bailey gave a false story
about his activities that day because he did not want to get in
trouble. Bailey falsely said he and Tiffany had been near an
apartment house on Eve Street because he was looking for car parts.
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Tiffany Jackson’s testimony
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Tiffany Jackson testified Bailey and Brown left their apartment to
pick up Brown’s clothes at his father’s house. They returned with
Smith; she had never met him before. Bailey left again to run
errands. Smith left separately, and Brown stayed at the apartment.
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After Bailey returned from his errands, Jackson saw a police officer
in the alley with her neighbor. She went outside and asked what
was going on. They said that they found someone’s safe and
important papers in the garbage can. Jackson went back to the
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apartment and told Bailey and Brown.
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Jackson testified that Brown “got hysterical. And he said that, f* *k
man. I put that—I put it in there. It wasn’t nothing in there so I
threw it away.” Brown also said “that bitch, she burned me on my
weed. I gave her money for chronic and she gave me stress. I
wanted my money back and she didn’t give me my money back, so
I took her shit.”
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Jackson testified that Bailey immediately became upset and
hysterical. Brown left the apartment. Bailey and Jackson had a
conversation, and the police arrived.
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Jackson testified the police asked her about an incident at an
apartment house on Pacheco Road, just east of Eve Street. Jackson
falsely claimed she went there with Bailey to look for car parts. She
lied because they knew the police would not believe anything
Bailey said.
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Jackson testified that a few days after Bailey was arrested, she went
to the apartment complex where the robbery/burglary occurred. She
asked the apartment manager if there were any empty units to rent,
and whether there had recently been a robbery there. On October
26, 2010, Jackson returned to the apartment complex with several
people: Brown’s father; a woman who claimed to have purchased
methamphetamine from Garcia; the robbery victim; and someone
who spoke Spanish. She wanted to clear Bailey’s name and did not
threaten Garcia. Jackson testified Garcia agreed to speak with them,
and she was not afraid of them. Jackson showed Bailey’s
photograph to Garcia, and Garcia said she “didn’t know. He was
just black.” Jackson testified she knew “for a fact” that Garcia sold
marijuana and methamphetamine.
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People v. Bailey-Banks, No. F065678, 2014 WL 3533422, at *1-8 (Cal. Ct. App. July 17, 2014).
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II.
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Discussion
A federal court may grant habeas relief when a petitioner shows that his custody violates
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federal law. See 28 U.S.C. §§ 2241(a), (c)(3), 2254(a); Williams v. Taylor, 529 U.S. 362, 374-75
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(2000). Section 2254 of Title 28, as amended by the Antiterrorism and Effective Death Penalty
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Act of 1996 (“AEDPA”), governs a state prisoner’s habeas petition. See § 2254; Harrington v.
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Richter, 562 U.S. 86, 97 (2011); Woodford v. Garceau, 538 U.S. 202, 206-08 (2003). In a
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Section 2254 proceeding, a federal court examines the decision of the last state court that issued a
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reasoned opinion on petitioner’s habeas claims. See Wilson v. Sellers, 138 S. Ct. 1188, 1192
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(2018). The standard that governs the federal court’s habeas review depends on whether the state
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court decided petitioner’s claims on the merits.
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When a state court has adjudicated a petitioner’s claims on the merits, a federal court
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reviews the state court’s decision under the deferential standard of Section 2254(d). Section
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2254(d) precludes a federal court from granting habeas relief unless a state court’s decision is
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(1) contrary to clearly established federal law, (2) a result of an unreasonable application of such
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law, or (3) based on an unreasonable determination of facts. See § 2254(d); Murray v. Schriro,
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882 F.3d 778, 801 (9th Cir. 2018). A state court’s decision is contrary to clearly established
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federal law if it reaches a conclusion “opposite to” a holding of the United States Supreme Court
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or a conclusion that differs from the Supreme Court’s precedent on “materially indistinguishable
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facts.” Soto v. Ryan, 760 F.3d 947, 957 (9th Cir. 2014) (citation omitted). The state court’s
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decision unreasonably applies clearly established federal law when the decision has “no
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reasonable basis.” Cullen v. Pinholster, 563 U.S. 170, 188 (2011). An unreasonable
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determination of facts occurs when a federal court is “convinced that an appellate panel, applying
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the normal standards of appellate review, could not reasonably conclude that the finding is
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supported by the record.” Loher v. Thomas, 825 F.3d 1103, 1112 (9th Cir. 2016). A federal
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habeas court has an obligation to consider arguments or theories that “could have supported a
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state court’s decision.” See Sexton v. Beaudreaux, 138 S. Ct. 2555, 2557 (2018) (quoting Richter,
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562 U.S. at 102). One rule applies to all state prisoners’ petitions decided on the merits: the
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petitioner must show that the state court’s decision is “so lacking in justification that there was an
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error well understood and comprehended in existing law beyond any possibility for fairminded
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disagreement.” Richter, 562 U.S. at 103.
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Even when a state court does not explicitly address a petitioner’s claims on the merits, a
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Section 2254 petitioner still must satisfy a demanding standard to obtain habeas relief. When a
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state court gives no reason for denying a petitioner’s habeas claim, a rebuttable presumption
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arises that the state court adjudicated the claim on the merits under Section 2254(d). See Richter,
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562 U.S. at 99. And a federal habeas court’s obligation to consider arguments or theories that
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could support a state court’s decision extends to state-court decisions that offer no reasoning at
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all. See Sexton, 138 S. Ct. at 2557.
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If a state court denies a petitioner’s habeas claim solely on a procedural ground, then
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Section 2254(d)’s deferential standard does not apply. See Visciotti v. Martel, 862 F.3d 749, 760
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(9th Cir. 2016). However, if the state court’s decision relies on a state procedural rule that is
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“firmly established and regularly followed,” the petitioner has procedurally defaulted on his claim
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and cannot pursue habeas relief in federal court unless he shows that the federal court should
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excuse his procedural default. See Johnson v. Lee, 136 S. Ct. 1802, 1804 (2016); accord
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Runningeagle v. Ryan, 825 F.3d 970, 978-79 (9th Cir. 2016). If the petitioner has not pursued his
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habeas claim in state court at all, the claim is subject to dismissal for failure to exhaust state-court
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remedies. See Murray v. Schriro, 882 F.3d 778, 807 (9th Cir. 2018).
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If obtaining habeas relief under Section 2254 is difficult, “that is because it was meant to
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be.” Richter, 562 U.S. at 102. As the Supreme Court has explained, federal habeas review
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“disturbs the State’s significant interest in repose for concluded litigation, denies society the right
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to punish some admitted offenders, and intrudes on state sovereignty to a degree matched by few
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exercises of federal judicial authority.” Id. at 103 (citation omitted). The federal court’s habeas
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review serves as a “guard against extreme malfunctions in the state criminal justice systems, not a
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substitute for ordinary error correction through appeal.” Id. at 102-03 (emphasis added).
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Here, petitioner raises eight claims for habeas relief:
1. The prosecutor improperly introduced a document
pertaining to the prosecution of Smith.
2. The prosecutor committed prosecutorial misconduct by
during closing argument.
3. The jury instruction improperly shifted the burden of proof
to petitioner.
4. The Court of Appeal erroneously concluded that the jury did
not rely on the document from Smith’s case.
5. Petitioner was improperly convicted as a principal and as an
accessory after the fact for the same crime.
6. Petitioner had ineffective assistance of counsel because his
counsel failed to object to the admission of the document
from Smith’s case.
7. The jury instruction omitted lesser included offenses.
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8. The prosecutor failed to prove petitioner’s prior strike under
California’s Three-Strikes Law.2
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The Court of Appeal addressed all these claims on the merits in a reasoned opinion.
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Petitioner has not exhausted his fifth, seventh, and eighth claims because he has failed to present
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those claims to the California Supreme Court. The remaining claims fail on the merits.
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a. Unexhausted Claims and Petitioner’s Motion to Stay
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Petitioner has conceded that he has not exhausted some of his claims, even though he does
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not state which claims are unexhausted. See ECF Nos. 27, 28. Earlier in the case, he moved to
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stay this proceeding pending his exhaustion of state-court remedies, but he did not provide any
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reason why staying this case was appropriate or explain why he could not exhaust his claims
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before filing his petition. Given the deficiency in petitioner’s motion to stay, the court denied the
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motion to stay without prejudice and allowed petitioner to renew his motion to stay. See ECF
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Nos. 30, 31. After four months passed without petitioner renewing his motion to stay, this court
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gave petitioner another opportunity to renew his motion. See ECF No. 33. About seven months
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have passed, and petitioner still has not renewed his motion to stay. The court should decline to
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stay the case and should proceed with review of the petition.
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We begin by identifying petitioner’s unexhausted claims. Respondent has lodged
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petitioner’s appellate briefs filed before the Court of Appeal and the California Supreme Court.
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See ECF No. 22. After comparing those briefs, we find that petitioner has not presented his fifth,
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seventh, and eighth claims to the California Supreme Court. Compare Lodged Docs. 29, 31, with
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Lodged Doc. 35. Because petitioner has not presented those claims to the California Supreme
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Court, he has not exhausted those claims. See Cooper v. Neven, 641 F.3d 322, 326 (9th Cir.
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For the fourth claim, petitioner states, “Jury misconduct—violation of due process and fair trial
. . . Jury was exposed to prejudicial information . . . .” ECF No. 1 at 6. Petitioner then argues in a
memorandum attached to the petition that the Court of Appeal erred by assuming that the jury did
not rely on the allegedly prejudicial information, which petitioner identifies as the documents
from Smith’s case. See id. at 15. Petitioner does not explain how being exposed to the allegedly
prejudicial evidence—introduced by attorneys and admitted by the trial court—constitutes jury
misconduct. Thus, despite the label “jury misconduct,” we take the fourth claim to be
challenging the Court of Appeal’s conclusion that the jury did not rely on the documents from
Smith’s case.
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2011) (“Exhaustion requires the petitioner to . . . present his claims to the highest court of the
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state.”).
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The court need not stay this case even though petitioner has not exhausted all his claims.
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A procedural problem arises when a state prisoner in a Section 2254 proceeding files a mixed
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petition—a habeas petition that includes exhausted and unexhausted claims. Ordinarily, a state
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prisoner must exhaust state-court remedies for every habeas claim before pursuing a Section 2254
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petition in federal court under the total exhaustion requirement, Rose v. Lundy, 455 U.S. 509, 518
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(1982), and the AEDPA’s one-year statute of limitations is not tolled by the filing of a
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Section 2254 petition, Duncan v. Walker, 533 U.S. 167, 181-82 (2001). Thus, if a petitioner files
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a timely but mixed petition in federal court, and the district court dismisses without prejudice for
11
failure to exhaust, the one-year statute of limitations often expires by the time petitioner exhausts
12
his remedies in state court and returns to federal court, thereby effectively precluding federal
13
habeas review. See Rhines v. Weber, 544 U.S. 269, 275 (2005); Dixon v. Baker, 847 F.3d 714,
14
718-19 (9th Cir. 2017). Recognizing this problem, courts have allowed state petitioners to obtain
15
federal review on mixed petitions by staying the Section 2254 proceedings in federal court while
16
the petitioners pursue remedies in state court for unexhausted claims. See generally Rhines, 544
17
U.S. at 273; Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), overruled on other grounds by
18
Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007). Failure to give petitioners the opportunities to
19
stay the Section 2254 proceedings can constitute abuse of discretion in some cases, see Dixon,
20
847 F.3d at 719, but a stay is not appropriate hare.
21
A state prisoner with a mixed petition may stay his Section 2254 proceeding by following
22
one of two procedures: the Rhines procedure or the Kelly procedure. See Rhines, 544 U.S. at 277;
23
Kelly, 315 F.3d at 1069-70; King v. Ryan, 564 F.3d 1133, 1139-40 (9th Cir. 2003) (distinguishing
24
Kelly and Rhines). Under Rhines, a district court may stay the Section 2254 proceeding while the
25
petitioner exhausts his state-court remedies, and all claims remain pending in federal court and
26
protected from the one-year statute of limitations. See Rhines, 544 U.S. at 277-78. Rhines
27
applies when the petitioner shows: (1) there is “good cause” for the petitioner’s failure to exhaust
28
his claims in state court; (2) the unexhausted claims are not “plainly meritless”; and (3) the
12
1
petitioner has not engaged in “abusive litigation tactics or intentional delay.” Id. If the petitioner
2
fails to satisfy the requirements under Rhines, the district court must consider staying the
3
proceeding under Kelly by allowing “the petitioner to delete the unexhausted claims and to
4
proceed with the exhausted claims if dismissal of the entire petition would unreasonably impair
5
the petitioner’s right to obtain federal relief.” Dixon, 847 F.3d at 719.
6
Under Kelly, a petitioner voluntarily dismisses unexhausted claims from a mixed petition,
7
and the court stays the proceeding only as to the exhausted claims. See King, 564 F.3d at 1135.
8
The petitioner may then pursue remedies for his unexhausted claims in state court and later
9
amend the stayed petition in federal court, adding back to the petition the newly-exhausted
10
claims. See id. To stay a Section 2254 proceeding under Kelly, the petitioner need not show
11
good cause, but the newly exhausted claims are not protected from the one-year statute of
12
limitations. See id. at 1140-41.
13
Here, petitioner has not shown that a stay is appropriate under Rhines or Kelly. Under
14
Rhines, petitioner has not shown good cause.3 This court has explained to petitioner how to
15
obtain a stay under Kelly—that is, by voluntarily dismissing the unexhausted claims. See ECF
16
No. 30, at 2-5. Several months have passed since the court has explained the Kelly procedures,
17
see id., but petitioner still has not renewed his motion to stay. Accordingly, petitioner has not
18
satisfied the requirements of Rhines or Kelly.
19
We next consider whether the court must dismiss the entire petition under the total
20
exhaustion requirement. When a habeas petitioner has not attempted to present his unexhausted
21
claims in state court, the court must consider whether the petitioner still has any state remedy
22
23
24
25
26
27
28
3
In his motion to stay, which the court denied without prejudice, petitioner stated:
I would like to stay and abey Federal Petition Case # (1:15cv01839AWI-MJS H.C.) I currently is exhausting claims in Superior Court
case #HC015533A.
Rhines v. Weber, [544 U.S. 269] (2005) permits this Court to stay
the instant petition while Petitioner exhausts his claims in the state
courts.
ECF Nos. 27, 28. After a search of the state courts’ dockets, we have not found that petitioner
has presented his unexhausted claims to the California Supreme Court.
13
1
available before dismissing the petition for lack of exhaustion. See Johnson v. Zenon, 88 F.3d
2
828, 831 (9th Cir. 1996) (concluding that petitioner has not exhausted his claims in state court but
3
nonetheless remanding, with instructions to consider whether any state remedy remains
4
available). If the petitioner still has available state remedies, the court must dismiss the petition
5
without prejudice, and the petitioner may return to state court to exhaust his claims. See Johnson
6
v. Lewis, 929 F.2d 460, 464 (9th Cir. 1991). If the petitioner would now be precluded from
7
presenting unexhausted claims, for example because of a procedural bar under state law, then the
8
petitioner “meets the technical requirements for exhaustion; there are no state remedies any
9
longer available’ to him.” Coleman v. Thompson, 501 U.S. 722, 732 (1991); accord Woods v.
10
Sinclair, 764 F.3d 1109, 1129 (9th Cir. 2014). The court may not review the merits on a
11
particular claim if the petitioner has procedurally defaulted on that claim. See Woods v. Sinclair,
12
764 F.3d 1109, 1129 (9th Cir. 2014).
13
Here, the dismissal of the entire petition is inappropriate because petitioner now has no
14
state remedy available for the unexhausted claims. The Court of Appeal decided petitioner’s
15
direct appeal more than four years ago, in July 2014. See Bailey-Banks, 2014 WL 3533422. All
16
of petitioner’s unexhausted claims arise from the circumstances that were known to petitioner, as
17
indicated by the fact that he briefed those claims on direct appeal before the Court of Appeal. See
18
Lodged Docs. 29, 31. Given the unexplained delays in presenting his claims to the California
19
Supreme Court, petitioner has procedurally defaulted on his unexhausted claims. See In re Reno,
20
55 Cal. 4th 428, 461-62 (2012). Because petitioner cannot return to state court to present his
21
unexhausted claims, he has no state remedy available for those claims. The court should
22
therefore decline to dismiss the entire petition and address the merits of petitioner’s exhausted
23
claims. Petitioner has procedurally defaulted on his unexhausted claims, so we do not reach their
24
merits.
25
In sum, petitioner cannot prevail on his unexhausted claims that he was unlawfully
26
convicted as both a principal and an accessory after the fact (Claim 5), that the jury instruction
27
erroneously omitted lesser included offenses (Claim 7), and that the prosecutor failed to prove a
28
prior strike under California’s Three-Strikes law (Claim 8). The court need not stay the case or
14
1
reach the merits of these unexhausted claims.
2
b. Admission of a Document from Smith’s Case
3
Before trial, the prosecutor stated that he intended to introduce People’s Exhibit 3, a 16-
4
page summary of docket activities from Smith’s case—without presenting Smith as a witness
5
against petitioner—to establish predicate offenses in support of the gang allegations against
6
petitioner. See SCT 38-54. Exhibit 3 summarized the procedural history in Smith’s case (as a
7
docket report from the CM/ECF system of a federal district court would). In particular, Exhibit 3
8
noted that Smith had pleaded no contest to a first-degree burglary charge and that Smith admitted
9
the government’s gang allegation in connection with that offense. See id at 39, 50; Bailey-Banks,
10
2014 WL 3533422, at *11.4 The trial court stated that it would not allow the prosecutor to
11
introduce Exhibit 3, explaining that the exhibit was inadmissible under California’s rules of
12
evidence and that the introduction of Exhibit 3 might violate petitioner’s right to confront
13
witnesses against him. RT 2:255-56. Before closing argument, the trial court asked the
14
prosecutor which exhibits he wished to introduce into evidence, and the prosecutor replied that he
15
wished to introduce “everything,” except for an unredacted transcript and a recording of a 911
16
call and a DVD; the list of excluded items did not include Exhibit 3. See RT 13:1525; Bailey-
17
Banks, 2014 WL 3533422, at *11. The defense counsel did not object, and the court admitted
18
Exhibit 3 into evidence despite its pretrial ruling. In this habeas proceeding, petitioner contends
19
that the admission of Exhibit 3 violated his right to confront witnesses against him (Claim 1) and
20
that his counsel was ineffective in failing to object to the admission of Exhibit 3 (Claim 6).
21
Petitioner also argues that the Court of Appeal erred by concluding that the admission of
22
Exhibit 3 was harmless.
23
The standard from Brecht v. Abrahamson, 507 U.S. 619 (1993), governs the harmless-
24
error inquiry. See Dixon v. Williams, 750 F.3d 1027, 1034 (9th Cir. 2014) (per curiam).
25
Under Brecht, a petitioner can obtain federal habeas relief only if “the error had substantial and
26
27
28
4
Petitioner states that a plea agreement between Smith and the government were introduced into
evidence, ECF No. 1 at 5-6, but this is inaccurate. Exhibit 3 summarizes Smith’s plea to some
degree, but it does not contain the plea agreement itself. See SCT 38-54.
15
1
injurious effect or influence in determining the jury’s verdict.” 507 U.S. at 637. To satisfy this
2
standard, the court must have “grave doubt” as to the outcome, meaning that “in the judge’s mind,
3
the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of
4
the error.” See O’Neal v. McAninch, 513 U.S. 432, 435 (1995). The Brecht standard applies “in
5
virtually all” Section 2254 cases, see Fry v. Pliler, 551 U.S. 112, 117 (2007), and only in rare
6
cases involving truly egregious errors can a federal court grant habeas relief without the harmless-
7
error inquiry.5
8
9
10
Here, the Court of Appeal reasonably concluded that the admission of Exhibit 3 was
harmless, given the government’s other evidence showing Smith’s involvement with the burglary
and robbery. Mason Woessner, a police officer, testified:
11
Q Were you later able to identify who Baby Rags was?
12
A Yes.
13
Q Who?
14
A Andrew Smith.
15
Q And during the course of your interview with Mr. Brown, was he
able to describe the actions between himself and Mr. Smith inside
that apartment?
16
17
A Yes, he did. . . . He said that Mr. Smith had mentioned to him
that there was some money at the apartment and also that the people
at the apartment sell crystal methamphetamine. He said he went to
the apartment along with Mr. Smith. At one point Mr. Smith
entered the apartment through a window—I believe it was a kitchen
window—and then opened the front door and allowed Mr. Brown
inside. Once they were inside, he said Mr. Smith produced a
firearm and pointed it at the female occupant. He then said that he
looked around in the rooms for money, and at one point he found a
18
19
20
21
22
23
24
25
26
27
28
5
Cases that would circumvent the harmless-error inquiry are truly rare. Such a case is one
involving “a deliberate and especially egregious error of the trial type, or one that is combined
with a pattern of prosecutorial misconduct” that “might so infect the integrity of the proceeding as
to warrant the grant of habeas relief, even if it did not substantially influence the jury’s verdict.”
See Brecht, 507 U.S. at 638 n.9. Examples of such egregious errors include requiring
representation by counsel who has a conflict of interest, Holloway v. Arkansas, 435 U.S. 475, 489
(1978), trial before a judge who has a direct pecuniary interest in the outcome, Tumey v. State of
Ohio, 273 U.S. 510, 535 (1927), precluding counsel of choice from representing a criminal
defendant, United States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006), and precluding
exculpatory evidence during a cross-examination, see Holley v. Yarborough, 568 F.3d 1091, 1098
(9th Cir. 2009).
16
1
safe in one of the bedrooms, retrieved the safe, removed it from the
bedroom, and then, as they were leaving the apartment, he said he
dropped the safe and Mr. Smith picked it up.
2
3
RT 4:480-81.6 Woessner’s testimony allowed the jury to infer Smith’s involvement in the
4
burglary and robbery. Because the jury could infer Smith’s involvement independent of
5
Exhibit 3, the record here does not raise a grave doubt that the information contained in Exhibit 3
6
affected the outcome of the trial.
Petitioner argues that the court should hold an evidentiary hearing to examine whether the
7
8
jurors in his case considered Exhibit 3. ECF No. 1 at 14. Whether the jurors considered
9
Exhibit 3 does not affect our conclusion that the record does not raise a grave doubt as to the
10
exhibit’s effect on the trial’s outcome. Thus, the court should decline to hold an evidentiary
11
hearing.
12
c. Prosecutorial Misconduct
13
Petitioner contends that the prosecutor committed a misconduct during the rebuttal portion
14
of the closing argument by expressing his personal opinion. See ECF No. 1 at 5, 17-18. During
15
the government’s rebuttal, the prosecutor said:
16
Remember, look at all the evidence. Don’t just look at the stuff the
attorneys tell you to because we are biased. I am the most biased
person in the courtroom. I’ll tell you right now, I believe to the
bottom of my feet these guys did it. That’s why I am here.
17
18
RT 14:1703 (emphasis added). Again, the Court of Appeal concluded that any error was
19
harmless, and we see no error.
20
The prosecutor’s comment meant that the attorneys’ statements were not evidence, and the
21
22
comment was directing the jury to weigh the evidence setting aside the attorneys’ statements. In
addition, when the defense counsel objected to the challenged portion of the prosecutor’s rebuttal,
23
the trial court instructed the jury not to consider the comment:
24
Ladies and gentlemen, the attorneys, as I stated previously, are
advocates for their side and oftentimes they will make statements or
say things during their argument that may be somewhat improper or
across the line.
25
26
27
28
6
No attorney objected to the admission of the foregoing testimony from Woessner.
17
1
2
At this time, based on [the prosecutor’s] last statement, I am going
to order that you disregard his last statement regarding believing
from the bottom of his feet.
3
RT 14:1703-04. “[W]e presume a jury follows its instructions,” Poyson v. Ryan, 879 F.3d 875,
4
898 (9th Cir. 2018), and given the trial court’s instruction to disregard the statement at issue, we
5
see no grave doubt as to the outcome of the trial.7
6
d. Jury Instruction
7
Before its revision in September 2017, CALCRIM No. 301, a model jury instruction in
8
California, stated the following:
9
[Except for the testimony of , which
requires supporting evidence [if you decide (he/she) is an
accomplice],] (the/The) testimony of only one witness can prove
any fact. Before you conclude that the testimony of one witness
proves a fact, you should carefully review all the evidence.
10
11
12
See also Bailey-Banks, 2014 WL 3533422, at *22. The commentary for CALCRIM No. 301
13
provided that the trial court should insert the first bracketed language if the testimony of an
14
accomplice or other witness required corroboration. See id.; People v. Chavez, 39 Cal. 3d 823,
15
831 (1985) (discussing standard on accomplice testimony). California’s model jury instructions
16
also included CALCRIM No. 334, which instructed the jury on the law applicable to accomplices.
17
The jury in petitioner’s case incorporated CALCRIM Nos. 301 and 334:
18
301
19
Except for the testimony of Larry Bailey, which requires supporting
evidence, the testimony of only one witness can prove any fact.
Before you conclude that the testimony of one witness proves a
fact, you should carefully review all the evidence.
20
21
334
22
Before you may consider the statement or testimony of Larry Bailey
as evidence against Rayshaun Brown, you must decide whether
Larry Bailey was an accomplice to those crimes. A person is an
accomplice if he or she is subject to prosecution for the identical
crime charged against the defendant. Someone is subject to
prosecution if, one, he or she personally committed the crime or,
two, he or she knew of the criminal purpose of the person who
23
24
25
26
27
28
Petitioner also states that the prosecutor unlawfully vouched for some unidentified witness’s
credibility. ECF No. 1 at 5. However, he cites no evidence in support and does not explain why
this claim, even if supported, would warrant habeas relief.
18
7
1
2
committed the crime; and, three, he or she intended to and did, in
fact, aid, facilitate, promote, encourage, or instigate the commission
of the crime or participate in a criminal conspiracy to commit the
crime.
3
4
5
6
The burden is on the defendant to prove that it is more likely than
not that Larry Bailey was an accomplice.
If you decide that a declarant or witness was not an accomplice,
then supporting evidence is not required and you should evaluate
his or her (statement/ or testimony) as you would that of any other
witness.
7
8
9
10
If you decide that a (declarant/ or witness) was an accomplice, then
you may not convict Defendant Brown based on Defendant Bailey’s
(statement/ or testimony) alone. You may use the statement or
testimony of an accomplice to convict the defendant only if:
1. The accomplice’s (statement/ or testimony) is supported by
other evidence that you believe;
11
12
2. That supporting evidence is independent of the accomplice’s
(statement/ or testimony); AND
13
3. That supporting evidence tends to connect the defendant to the
commission of the crimes.
14
15
16
Supporting evidence, however, may be slight. It does not need to be
enough, by itself, to prove that the defendant is guilty of the
charged crimes, and it does not need to support every fact
(mentioned by the accomplice in the statement/ or bout which the
accomplice testified.)
17
CT 2:364, 366 (emphasis added); see also RT 13:1552. The Court of Appeal concluded that the
18
instructional error was harmless, relying on the italicized portions of CALCRIM No. 334 above.
19
See Bailey-Banks, 2014 WL 3533422, at *23. In this habeas proceeding, petitioner contends that
20
the trial court’s instruction on CALCRIM No. 301 confused the jury and inappropriately shifted
21
the burden of proof from the government to petitioner.
22
There is no grave doubt here as to the effect of the instruction on the outcome of
23
24
petitioner’s trial. The trial court’s instruction on CALCRIM No. 301 could confuse the jury if it
were read in isolation, but CALCRIM No. 334 provided, “If you decide that a declarant or
25
witness was not an accomplice, then supporting evidence is not required and you should evaluate
26
his or her (statement/ or testimony) as you would that of any other witness.” CT 2:364, 366. A
27
problem could arise if the jury did find petitioner to be an accomplice: even though CALCRIM
28
19
1
No. 344 provided that petitioner’s testimony could not be used to convict petitioner’s codefendant
2
Brown, it did not provide a similar cautionary language for evaluating petitioner’s own testimony
3
when the testimony is used for his own defense. That is, the jury could believe that, when
4
petitioner used his own testimony for his own defense in the joint trial, that testimony required
5
corroboration because petitioner was an accomplice.
6
The problem for petitioner is that his testimony was in fact corroborated. Woessner
7
testified that in a statement made to the police, Brown denied petitioner being involved in the
8
underlying offenses. RT 12:1465. Tiffany Jackson, who had lived with petitioner, testified that
9
petitioner tried to “stay clear” of West Side Crips such as removing his gang tattoos, and that
10
testimony corroborated petitioner’s testimony that he was no longer a member of that gang.
11
RT 11:1319-20. Jackson also testified that she decided not to allow Brown drive a car but
12
allowed petitioner to give Brown a ride, and that testimony supports the inference that petitioner
13
had no plan to be the getaway driver for Brown and Smith; it also corroborates petitioner’s
14
testimony that he had no intent to be involved in the robbery or burglary. RT 11:1146-47.
15
Jackson’s testimony that she heard Smith’s name for the first time on the day of petitioner’s arrest
16
corroborates petitioner’s testimony that he met Smith for the first time on the day of the offenses.
17
RT 11:1356. Given these witnesses’ testimony, a reasonable jurist could find that petitioner’s
18
testimony was corroborated, that the jury treated petitioner like any other witness, and that the
19
jury decided this case based on witnesses’ credibility, weighing conflicting evidence from
20
petitioner and the government. Again, the record does not raise a grave doubt as to the
21
instruction’s impact on the outcome of the trial.
22
e. General References to Due Process and Fair Trial
23
For each of his habeas claims, petitioner states in passing that his rights to due process and
24
a fair trial have been violated. See ECF No. 1 at 5-7. General appeals to broad principles do not
25
state cognizable federal habeas claims. See Casey v. Moore, 386 F.3d 896, 913 (9th Cir. 2004).
26
Only the holdings in the Supreme Court’s decisions can identify “clearly established Federal
27
law.” See Atwood v. Ryan, 870 F.3d 1033, 1046 (9th Cir. 2017). Petitioner does not develop an
28
argument explaining how his rights to due process and fair trial were violated. He also does not
20
1
identify any Supreme Court holding supporting his claim. Thus, the court should not grant
2
habeas relief based on petitioner’s vague references to the principles of due process and fair trial.
3
III.
4
Certificate of Appealability
A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district
5
court’s denial of a petition; he may appeal only in limited circumstances. See 28 U.S.C. § 2253;
6
Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing Section 2254 Cases
7
requires a district court to issue or deny a certificate of appealability when entering a final order
8
adverse to a petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d
9
1268, 1270 (9th Cir. 1997). A certificate of appealability will not issue unless a petitioner makes
10
“a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This
11
standard requires the petitioner to show that “jurists of reason could disagree with the district
12
court’s resolution of his constitutional claims or that jurists could conclude the issues presented
13
are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; accord
14
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
15
Here, petitioner has not made a substantial showing of the denial of a constitutional right.
16
Thus, the court should decline to issue a certificate of appealability.
17
IV.
18
19
Findings and Recommendations
The court should deny the petition for a writ of habeas corpus and decline to issue a
certificate of appealability.
20
These findings and recommendations are submitted to the U.S. District Court Judge
21
presiding over this case under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of
22
Practice for the United States District Court, Eastern District of California. Within 14 days of the
23
service of the findings and recommendations, petitioner may file written objections to the
24
findings and recommendations with the court and serve a copy on all parties. That document
25
must be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The
26
District Judge will then review the findings and recommendations under 28 U.S.C.
27
§ 636(b)(1)(C).
28
21
1
2
IT IS SO ORDERED.
3
Dated:
March 8, 2019
4
UNITED STATES MAGISTRATE JUDGE
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No. 202
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