Cook v. Clark et al

Filing 22

ORDER signed by Circuit Judge Mary M. Schroeder on 4/6/09 ORDERING that the Petition for Writ of Habeas Corpus is DENIED. CASE CLOSED. (Mena-Sanchez, L)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On September 22, 2006, Maurice Cook ("Petitioner"), a California state p riso n er proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U .S .C . § 2254. On February 23, 2007, Respondents filed an answer. On March 2 3 , 2007, Petitioner filed a reply and supporting memorandum. Petitioner asserts that his rights under the Sixth and Fourteenth Amendments to the United States Constitution were violated by the individual and cumulative effects of several errors made by counsel on direct appeal in the state court. For th e reasons set forth below, the petition for writ of habeas corpus is DENIED. /// ///
MAURICE COOK, ) ) Petitioner, ) v. ) ) KEN CLARK, et al., ) ) Respondents. ) _____________________________________ ) Case No. 2:06-cv-02110-MMS ORDER IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA SACRAMENTO DIVISION

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. P ro ced u ra l Background

BA CK GR OU ND

O n March 13, 2003, Petitioner was convicted by jury in the Yolo County S u p e rio r Court of one count of second-degree murder (Cal. Penal Code § 187(a)); o n e count of discharging a firearm in a grossly negligent manner (Cal. Penal Code § 246.3); one count of possessing a firearm within ten years of a criminal c o n v ic tio n (Cal. Penal Code § 12021(c)(1)); and one count of carrying a loaded f ir ea rm in a public place or vehicle after a criminal conviction (Cal. Penal Code § 1 2 0 3 1 ( a )( 1 ) , (2)(D)). Petitioner's sentence of 40 years to life included an e n h a n c e m e n t for intentional use of a firearm causing death or great bodily injury u n d e r Cal. Penal Code § 12022.53(d). O n April 5, 2004, the California Court of Appeal affirmed Petitioner's co n v ictio n s, and on June 9, 2004, the Supreme Court of California denied review. On June 2, 2005 and September 2, 2005, Petitioner filed two petitions for writ of h ab eas corpus in the Yolo County Superior Court. The Superior Court denied both p etitio n s. Petitioner sought appellate review of the second petition; both the C alifo rn ia Court of Appeal and the California Supreme Court denied relief. On September 22, 2006, Petitioner filed this federal petition for writ of h ab eas corpus pursuant to 28 U.S.C. § 2254, contending that his convictions v io late his rights under the Sixth and Fourteenth Amendments. B. F a ctu a l Background T h e California Court of Appeal summarized the facts of the case as follows: D e fe n d a n t, his two brothers, Antonio and Jamarl, and several other in d iv id u als were drinking alcohol, smoking marijuana, and listening to m u sic in the parking lot of an apartment complex on the evening of April 3 , 2002. One of those present was James Giles, who was wearing a blue sh irt, a color associated with members of the Crips street gang. D efen d an t and his brothers were active members of the Oak Park Blood street gang.

2

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

A t some point, Giles said to Antonio, "What's up, Loc?" It is d isresp ectfu l for a Crip to call a Blood "Loc." When defendant and Jam arl confronted Giles, who was sitting on the hood of a car, Giles got u p and took off his jacket. Defendant interpreted this as preparation to fig h t. Defendant said, "I don't fight niggas no more, I kill niggers." He th en walked to his car, retrieved a .38 caliber snub-nose revolver from th e trunk, walked to within two feet of Giles, and fatally shot him in the ch est and thigh. A fter Giles was shot, defendant and his brother ran to their car and "p eel[ed ] out of the parking lot." Defendant fired one to five shots in the air from the vehicle as they were leaving. Although some at the scene h ad run away when the confrontation occurred, there were still people in th e area when defendant discharged the gun from the vehicle. When the p o lice arrived approximately 20 minutes later, there were 50 to 60 people a t the crime scene area. D efen d an t, who was arrested a short time later, initially denied any in v o lv em en t in the shooting. In a second interview, he said that he shot G ile s out of "stupidity" after Giles had pulled out a sharp object or knife. D e fe n s e T h e defense theory was that the killing was only voluntary manslaughter b ecau se defendant acted under a heat of passion, or he acted in an honest b u t unreasonable belief in the need to defend his brother, Jamarl, or he w as too intoxicated to form the requisite specific intent. D efen d an t testified as follows: he was drinking in the parking lot and lis te n i n g to music with his two brothers and some other people. After Jam arl confronted Giles, defendant, whose vision was "blurred," saw a "sh arp object" in Giles's left hand. Defendant walked over to his car, retriev ed his gun, and shot Giles in the leg and chest because defendant w as scared and thought that Giles was going to jump defendant's b ro th ers. Defendant claimed that he accidentally fired off another round th ro u g h the roof of the car as he was leaving. D IS C U S S IO N In his federal habeas petition, Petitioner initially asserted that his co n stitu tio n al rights were violated because the state court gave a flight instruction to the jury. Respondent rebutted this claim in its answer, and Petitioner su b seq u en tly conceded the claim in his reply. Petitioner's remaining claims arise u n d er the Sixth and Fourteenth Amendments. Petitioner asserts that his counsel on d irect appeal was constitutionally ineffective, and that the cumulative effect of

3

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

co u n sel's errors violated Petitioner's right to due process. A. S t a n d a r d of Review T h e petition is governed by the provisions of the Anti-Terrorism and E f fe ctiv e Death Penalty Act ("AEDPA"), 28 U.S.C. § 2254(d). AEDPA provides th e following standards for federal habeas review of state court decisions: (d ) An application for a writ of habeas corpus on behalf of a person in c u s to d y pursuant to the judgment of a State court shall not be granted w ith respect to any claim that was adjudicated on the merits in State co u rt proceedings unless the adjudication of the claim­ ( 1 ) resulted in a decision that was contrary to, or involved an u n r ea so n a b le application of, clearly established Federal law, as d eterm in ed by the Supreme Court of the United States; or (2 ) resulted in a decision that was based on an unreasonable d eterm in atio n of the facts in light of the evidence presented in the S tate court proceeding. 2 8 U.S.C. § 2254(d). The Supreme Court has stated that a federal court may grant habeas relief u n d er the "contrary to" clause "if the state court arrives at a conclusion opposite to th at reached by this Court on a question of law or if the state court decides a case d if fe re n tly than this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). Habeas relief may be granted u n d e r the "unreasonable application" clause "if the state court identifies the correct g o v ern in g legal principle from [the Supreme] Court's decisions but unreasonably a p p lie s that principle to the facts of the prisoner's case." Id. To warrant habeas relief, the state court's application of federal law must be more than erroneous; it m u s t be "objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75 (2003). A federal habeas court's examination is focused on the "last reasoned d ecisio n " of the state courts. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991). The "last reasoned decision" in this case is the October 31, 2005 order of the Yolo C o u n ty Superior Court, denying the second state habeas petition.

4

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

B.

I n e ff ec tiv e Assistance of Counsel P etitio n er asserts that his appellate counsel was constitutionally ineffective

fo r failing to challenge on direct appeal three instances of ineffective assistance by P e titio n e r's trial counsel. Petitioner contends appellate counsel should have raised claim s regarding trial counsel's failure to investigate juror misconduct, to object to th e admission of certain character evidence, and to object to prosecutorial m isco n d u ct during the state's closing argument. Petitioner exhausted these claims b y raising and arguing them in his second state habeas petition. See Reynoso v. G iu r b in o , 462 F.3d 1099, 1109-10 (9th Cir. 2006). T h e Sixth Amendment guarantees the right to effective assistance of co u n sel. U.S. Const. amend. VI; Strickland v. Washington, 466 U.S. 668 (1984). A claim of ineffective assistance is analyzed according to the two-part test set forth in Strickland. First, the defendant must show that counsel's performance was so d eficien t that it "fell below an objective standard of reasonableness." Strickland, 4 6 6 U.S. at 687-88. In making this showing, the defendant must rebut "a strong p resu m p tio n that counsel's conduct [fell] within the wide range of reasonable p ro fe ssio n al assistance." Id. at 689. Second, the defendant must demonstrate "a reaso n ab le probability that, but for counsel's unprofessional errors, the result of the p ro ceed in g would have been different." Id. at 694. Petitioner's claim of in effectiv e assistance of appellate counsel requires him to show a reasonable p ro b ab ility that the result of his appeal would have been different but for appellate co u n sel's errors. Smith v. Robbins, 528 U.S. 259, 285-86 (2000). 1. J u r o r Misconduct

P e titio n e r's first ineffective assistance claim concerns trial counsel's failure to investigate an issue of potential juror bias. Petitioner asserts that Juror #2 gave a false answer to a question on the voir dire questionnaire which asked if the juror or

5

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

a family member had ever been the victim of a crime. Juror #2 answered "no" on th e questionnaire. However, after an investigation by the prosecutor's office due to su sp icio n s that Juror #2 was associated with gang violence, it came to light during trial that Juror #2 had a close cousin who "was the victim of a brutal attack and su stain ed major injuries," allegedly at the hands of a suspected member of the R u ssian mafia. Petitioner contends that trial counsel acted ineffectively by failing to conduct his own investigation into Juror #2's potential bias against gang m em b ers, and by failing to object to the presence of Juror #2 on the jury. T h e trial court held an evidentiary hearing and heard extensive argument fro m the prosecutor and the three defense attorneys representing Petitioner and each of his co-defendants. All three defense attorneys argued persuasively against rem o v al of Juror #2, believing the juror's continued presence on the jury without sin g lin g him out for removal or questioning him was in the best interests of their clien ts. The trial court agreed. P etitio n er has not demonstrated that his trial counsel's conduct fell outside "th e wide range of reasonable professional assistance." Strickland, 466 U.S. at 6 8 9 . The record before the court permits the conclusion that trial counsel acted strateg ically to retain Juror #2 as a juror potentially favorable to his client and to av o id disruption of the trial. Petitioner has failed to "overcome the presumption th at, under the circumstances, the challenged action `might be considered sound tr ia l strategy.'" Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). B e ca u s e trial counsel's performance was not constitutionally defective, ap p ellate counsel did not act unreasonably by failing to challenge trial counsel's actio n s on direct appeal. Under California law, an ineffective assistance claim b r o u g h t on direct appeal will result in reversal of the conviction "only if the record o n appeal demonstrates there could be no rational tactical purpose for counsel's

6

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

o m is sio n s ." People v. Lucas, 907 P.2d 373, 442 (Cal. 1995). In light of this strict s ta n d a r d , appellate counsel's decision not to raise an ineffective claim on direct ap p eal did not violate Strickland. See Miller v. Keeney, 882 F.2d 1428, 1434 (9th C ir. 1989) ("In many instances, appellate counsel will fail to raise an issue because sh e foresees little or no likelihood of success on that issue; indeed, the weeding out o f weaker issues is widely recognized as one of the hallmarks of effective appellate ad v o cacy."). Moreover, as discussed in further detail below, Petitioner failed to d em o n strate prejudice. 2. A d m is sio n of Character Evidence

P e titio n e r's second contention concerns the introduction of evidence that th r e e days prior to the charged offense, Petitioner entered a residence with a loaded g u n and bragged about being a Blood, "shooting a nigga," and not caring about w h at he had done. Petitioner acknowledges that trial counsel brought a motion in lim in e to exclude the evidence. The trial court denied the motion in limine and a d m itte d the evidence as relevant to proving Petitioner's intent to shoot Giles. See C a l. Evid. Code § 1101(b). Petitioner contends that trial counsel was under an o b lig atio n to renew his objection on the record at trial in order to preserve the claim for appeal, and that appellate counsel's failure to argue this point of error co n stitu ted ineffective assistance of counsel. U n d er the standard set forth in Strickland, trial counsel's decision not to m a k e further objection to the introduction of evidence of Petitioner's prior act was n o t so deficient as to be objectively unreasonable. Under California law, a motion in limine to exclude evidence is sufficient to avoid procedural default and preserve th e issue for appeal as long as the context for admission of the evidence does not ch an g e by the time it is introduced at trial. See People v. Robinson, 124 P.3d 363, 4 0 4 (Cal. 2005); People v. Morris, 807 P.2d 949, 968 (Cal. 1991).

7

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

B ecau se trial counsel's performance was not deficient, appellate counsel did n o t act ineffectively by deciding not to challenge trial counsel's actions on appeal. See Jones v. Barnes, 463 U.S. 745, 751-54 (1983) (appellate counsel is not o b lig ated to raise every non-frivolous argument on appeal); Turner v. Calderon, 2 8 1 F.2d 851, 872 (9th Cir. 2002) ("To be constitutionally effective, `[c]ounsel n eed not appeal every possible question of law.'") (citation omitted). In addition, as discussed further below, Petitioner suffered no prejudice as a result of appellate co u n sel's actions. 3. P r o s ec u t o r ia l Misconduct

P etitio n er's third claim is that appellate counsel was ineffective for n e g le ctin g to challenge trial counsel's failure to object to the prosecutor's alleged m isch aracterizatio n of Petitioner's testimony during the state's closing argument. At trial, Petitioner admitted that he was guilty of possessing a loaded firearm in a v eh icle, and within ten years of a criminal conviction. He admitted to firing his g u n through the roof of his car as he drove away from the scene. Petitioner also ad m itted to killing Giles. He stated that he initially shot Giles in the leg in order to p r e v e n t a confrontation between Giles and Petitioner's brother; however, when G iles grew more angry and refused to back off, Petitioner shot him again, this time in the chest. During closing argument, the prosecutor stated, "[Petitioner] told you why h e did it, because [the victim] ­ he didn't stop moving. He was still there. He w an ted to kill him." The prosecutor later told the jury, Maurice Cook has already admitted to you that he is guilty of every c h a rg e that just deals with guns. . . . He said if there was a gun charge, I'm guilty, so that's an issue you don't need to talk about. When you co m b in e his admission in that regard with his gang involvement, his celeb ratio n , the fact that these are gang crimes, you are done with all th o se counts, and it is ­ really it is as simple as that with this case, with ev eryth in g that you have.

8

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

P e titio n e r asserts that the prosecutor's first statement constituted an improper o p in io n on the issue of Petitioner's guilt, and that the prosecutor's second statem en t permitted the jury to convict Petitioner without adequate proof. "When prosecutorial misconduct is alleged, `the issue is whether, considered in the context of the entire trial, that conduct appears likely to have affected the ju ry's discharge of its duty to judge the evidence fairly.'" United States v. H en d erso n , 241 F.3d 638, 652 (9th Cir. 2000) (quoting United States v. Frederick, 7 8 F.3d 1370, 1379 (9th Cir. 1996)). During closing argument, a prosecutor may s u m m a riz e and comment upon the evidence given at trial as long as his or her statem en ts are "phrased in such a manner that it is clear to the jury that the p ro secu to r is summarizing evidence rather than inserting personal knowledge and o p in io n into the case." United States v. Hermanek, 289 F.3d 1076, 1100 (9th Cir. 2 0 0 2 ). A prosecutor is also permitted to offer any "reasonable inferences" from th e evidence given at trial. Henderson, 241 F.3d at 652. W ith respect to the first challenged statement, the record reflects that the p ro secu to r simply recounted Petitioner's testimony that he shot Giles in the chest after the shot to the leg failed to deter Giles, then asked the jury to draw the reaso n ab le inference that Petitioner "wanted" to kill Giles in order to stop him. Defense counsel's decision not to object fell within the bounds of competent rep resen tatio n . Appellate counsel, in turn, was not ineffective for failing to raise th is issue on direct appeal. See Miller, 882 F.2d at 1434. W ith respect to the second challenged statement, Petitioner concedes that he ad m itted to the three substantive gun charges, see Cal. Penal Code §§ 246.3, 1 2 0 2 1 ( c )( 1 ) , 12031(a)(1), (2)(D), but asserts that he did not admit to intentional u s e of a firearm as required for the firearms enhancement, see Cal. Penal Code § 1 2 0 2 2 .5 3 ( d ) . He argues that the prosecutor's statement that Petitioner admitted

9

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

g u ilt of "every" gun charge permitted the jury to reach its finding on the en h an cem en t without adequate proof. Regardless of whether the prosecutor's statements exceeded the reasonable in fe re n ce s that could be drawn from the evidence presented at trial, trial counsel's p erfo rm an ce was not constitutionally deficient. Trial counsel's performance must b e judged holistically, in light of his actions throughout Petitioner's trial. Kimmelman v. Morrison, 477 U.S. 365, 386 (1986). Although trial counsel did not o b ject during the state's closing argument, counsel, in his own closing argument, resp o n d ed directly and in significant detail to the prosecutor's statements: "Now, h o w do we know what [Petitioner's] intent was? He has admitted that he shot Jam es Giles, but that doesn't tell us what intent he had. . . . And so to determine w h at intent he possessed at various points of time you have to look at all the bits an d pieces of evidence you have heard." Because trial counsel's actions during an d after the state's closing argument plainly did not violate Strickland, appellate co u n sel reasonably refrained from raising this issue on appeal. See Turner, 281 F .3 d at 872 ("A failure to raise untenable issues on appeal does not fall below the S tr ic k la n d standard."). W ith respect to Strickland's prejudice prong, Petitioner has not shown a reaso n ab le likelihood that the outcome of his appeal would have been different if a p p e lla te counsel had challenged any of trial counsel's actions on direct appeal. In lig h t of the other evidence of Petitioner's guilt, including his own admissions and th e testimony of numerous eyewitnesses, there was no reasonable likelihood that th e California Court of Appeal would have concluded that trial counsel's actions p reju d iced Petitioner's case. Accordingly, appellate counsel's decision not to raise an y ineffectiveness claims did not affect the outcome of Petitioner's direct appeal. The Yolo County Superior Court's dismissal of Petitioner's state habeas petition

10

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

o n the ground that Petitioner failed to demonstrate prejudice from any of the a lle g e d errors of appellate counsel was, therefore, neither contrary to nor an u n reaso n ab le application of clearly established federal law as set forth in S trick lan d . Petitioner is not entitled to federal habeas relief on any of his in effectiv e assistance claims. C. C u m u la tiv e Error P etitio n er's final contention is that the cumulative effect of appellate c o u n s el's alleged errors violated his right to due process. Although Petitioner p resen ted this claim in his state habeas petition, the state court did not expressly ad d ress it. When a dispositive state court order does not "furnish a basis for its reaso n in g ," the federal habeas court must conduct "an independent review of the reco rd . . . to determine whether the state court clearly erred in its application of c o n tr o llin g federal law." Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000); see also Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "The Supreme Court has clearly established that the combined effect of m u ltip le trial court errors . . . . can violate due process even where no single error rises to the level of a constitutional violation or would independently warrant rev ersal." Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007) (citing Chambers v. M ississip p i, 410 U.S. 284, 290 n.3, 298 (1973)). A federal court should grant h ab ea s relief if "the combined effect of individually harmless errors render[ed] a crim in al defense `far less persuasive than it might [otherwise] have been.'" Id. (alteratio n in original) (quoting Chambers, 410 U.S. at 294). Under the applicable h arm less error standard, relief will be granted on a cumulative error claim "only if th e error[s] had a `substantial or injurious effect' on the verdict." Id. (quoting B rech t v. Abrahamson, 507 U.S. 619, 637-38 (1993)). The cumulative effect of m u ltip le errors is considered harmless "[i]f the evidence of guilt [was] otherwise

11

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

o v erw h elm in g ." Id. at 928. On review of the record in Petitioner's case, the court concludes that, even assu m in g a constitutional violation could arise from the cumulative effect of ap p ellate counsel's failure to attack any of the challenged aspects of trial counsel's p e r fo r m a n c e, any error was harmless. Petitioner admitted on the stand that he was g u ilty of all the substantive charges levied against him, and his guilt was co rr o b o ra ted by numerous prosecution witnesses who observed Petitioner's co n fro n tatio n with Giles. Accordingly, any errors of appellate counsel could not h av e had a "substantial or injurious effect" on the outcome of Petitioner's appeal. Brecht, 507 U.S. at 637-38. D. R eq u est for a Evidentiary Hearing P e titio n e r requests an evidentiary hearing. The court concludes that P e titio n e r's claims are unsupported by the record and DENIES the request. See S c h r ir o v. Landrigan, 550 U.S. 465, 127 S. Ct. 1933, 1940 (2007) ("[I]f the record refu tes the applicant's factual allegations or otherwise precludes habeas relief, a d is tr ic t court is not required to hold an evidentiary hearing."). C O N C L U S IO N F o r the reasons stated above, the petition for writ of habeas corpus is D E N IE D . DATED: A p ril 6, 2009 /s/ Mary M. Schroeder M A R Y M. SCHROEDER, U n ited States Circuit Judge S ittin g by designation

12