Brown v Clark

Filing 21

ORDER signed by Senior Circuit Judge J. Clifford Wallace on 8/10/10: Brown's petition for a writ of habeas corpus is denied. Civil Case Terminated. (Kaminski, H)

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U N IT E D STATES DISTRICT COURT FO R THE EASTERN DISTRICT OF CALIFORNIA

T Y R E LL TRAVIS BROWN, P e titio ne r, v. K E N CLARK, R e s p o nd e nt.

N o . 07 CV 0429 JCW O R D ER

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P e titio ne r Brown, a state prisoner proceeding pro se, filed a petition for writ o f habeas corpus pursuant to 28 U.S.C. § 2254, challenging his convictions on two c o unts of making a criminal threat in violation of California Penal Code section 422. His application to proceed in forma pauperis has been granted. I have reviewed the p e titio n, the respondent's answer, the traverse, and all supporting documents. I hold tha t Brown is not entitled to the relief requested and order the petition denied.

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I. T he following is a summary of the facts, taken from the unpublished opinion o f the California Court of Appeal, Third District: In September 2003, the victims, Mary Elva Kouklis and G e ne vie ve Manzo, lived and worked together. On September 24, 2 0 0 3 , at approximately 8:30 p.m., they followed one another home fro m work in separate cars. Kouklis, who was ahead of Manzo, got o ut of her car to unlock a gate that blocked their driveway. In order to re a c h their home, both victims had to drive around a white Chevrolet C a p ric e "almost blocking the driveway." Kouklis thought it was odd the car was parked so close to their driveway since there were no other c a rs parked on the street and she took down the car's license plate n um b e r . A s Kouklis reached the end of the driveway, she saw a man, w ho was later identified as defendant, quickly walking toward her with a gun in his hand. Not wanting to die in her "little Ford Escort," she go t out and faced him. Defendant raised his gun and began yelling at he r for driving too close to his car. She repeatedly apologized, b e lie ving she was "pleading for [her] life." Defendant told her, "I c o uld kill you, bitch. You know me. You know my business. And I o w n these streets." A s Manzo approached defendant and Kouklis, she heard yelling b ut did not know defendant had a gun. Manzo told defendant: "[T]his is private property. You need to leave." (RT 107) Defendant re s p o nd e d by pointing his gun at her head and stating: "I'm going to kill yo u, bitch. I'm gonna kill you. You know, I own these streets. You k no w who I am and what I do." A few moments later, defendant b e ga n backing down the driveway and explained: "[T]he only reason I'm not finishing you off now is because of them," pointing to the vic tims ' neighbors. A few minutes later, Manzo called 911. A police officer came a nd took a report. A couple of weeks later, the victims attended a ne ighb o rho o d "Cops and Coffee" meeting and told Sacramento Police O ffic e r Kyle Jasperson about their encounter with defendant.

O ffic e r Jasperson reviewed the police report, ran the license p la te number obtained by Kouklis and discovered the car was re gis te re d to defendant. While patrolling the victim's neighborhood, J a s p e rs o n, who had previous dealings with defendant, saw defendant a nd asked to speak with him. Defendant agreed and initially "denied p ulling the gun on anyone." He later admitted threatening the victims w ith a toy gun after they nearly hit his car while pulling into their d rive w a y. He explained he was angry because he had recently p urc ha s e d the car. He admitted yelling at the victims but said he could no t remember exactly what he had said because he was "probably either drunk or high on d
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re p lic a firearms, one black and one chrome, which defendant referred to as "toy guns . " T he victims later identified defendant as the person who thre a te ne d them and one of the toy guns as resembling the chrome gun us e d by defendant to threaten them. [Lo d ge d Doc. 3 at 2-4.] People v. Brown, 2005 WL 1635233 at *1-2 (Cal. App.

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C t.) (unpublished).
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A jury convicted Brown of two counts of making a criminal threat in violation
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o f California Penal Code section 422. [Lodged Doc. 3 at 1.] The trial court made
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find ings that Brown had made the threats while released on bail or his own
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re c o gniz a nc e , for purposes of a two-year sentencing enhancement under California
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P e na l Code section 12022.1; that he had previously been convicted of a serious
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fe lo ny for purposes of doubling his sentence under California's three strikes law,
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C a lifo rnia Penal Code section 1170.12; and that he had served a prior prison term
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fo r purposes of a one-year sentencing enhancement under California Penal Code
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s e c tio n 667.5(b). [Lodged Doc. 3 at 1.] Brown was then sentenced to five years
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a nd eight months in state prison ­ two consecutive eight-month terms for the two
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thre a t convictions, doubled due to his prior strike, plus two years' enhancement for
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c o mmitting the crime while released on bail and one year for the prior term in
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p ris o n. [Lodged Doc. 3 at 2.] The court ordered that the sentence run consecutive to
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a nine-year sentence previously imposed in a different case and formally reimposed,
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fo r a total term of 14 years and eight months. [Id.]
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Brown appealed to the California Court of Appeal, Third Appellate Division,
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w hic h affirmed his conviction in an unpublished opinion on July 13, 2005, but
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re d uc e d his sentence by one year. [Lodged Doc. 3.] On September 28, 2005,
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B ro w n' s petition for review by the California Supreme Court was denied. [Lodged
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D o c . 5.] Thereafter, he filed a state habeas petition in Sacramento County Superior
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C o urt, which was denied in a written opinion. [Lodged Doc. 8.] His habeas petition w a s also denied by the California Court of Appeal, Third Appellate District, with o nly the explanation: "See In re Hillery (1962) 202 Cal. App. 2d 293." [Lodged D o c . 7.] The California Supreme Court denied his habeas petition without comment. [Lo d ge d Doc. 8.] Brown filed the present federal petition on March 5, 2007. Respondent's a ns w e r was filed on July 16, 2007, and Brown's traverse was filed on July 30, 2 0 0 7 . On December 9, 2008, the case was reassigned to me. T his petition is governed by 28 U.S.C. § 2254, as amended by the A ntite rro ris m and Effective Death Penalty Act of 1996 (AEDPA). Section 2254(a) p ro vid e s that a district court may entertain an application for writ of habeas corpus " o nly on the ground that [the state prisoner] is in custody in violation of the C o ns titutio n or laws or treaties of the United States." 28 U.S.C. § 2254(a). T o obtain federal habeas relief, Brown must satisfy either section 2254(d)(1) o r section 2254(d)(2). See Williams v. Taylor, 529 U.S. 362, 403 (2000). As a me nd e d , 28 U.S.C. § 2254 provides that: (d ) An application for a writ of habeas corpus on behalf of a person in c us 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 c o urt proceedings unless the adjudication of the claim-(1 ) resulted in a decision that was contrary to, or involved an unre a s o na b le application of, clearly established Federal law, as d e te rmine d by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable d e te rmina tio n of the facts in light of the evidence presented in the State court proceeding. 2 8 U.S.C.A. § 2254. The Supreme Court interprets section 2254(d)(1) as follows: U nd e r the "contrary to" clause, a federal habeas court may grant the w rit if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case
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d iffe re ntly than this Court has on a set of materially indistinguishable fa c ts . Under the "unreasonable application" clause, a federal habeas c o urt may grant the writ if the state court identifies the correct go ve rning legal principle from this Court's decisions but unreasonably a p p lie s that principle to the facts of the prisoner's case. W illia m s , 529 U.S. at 412-13.

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T he deferential standard of review under AEDPA requires "that state-court
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d e c is io ns be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24
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(2 0 0 2 ). A district court generally gives deference to a state court finding of fact and
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p re s ume s it to be correct. 28 U.S.C. § 2254(e)(1). Federal courts may address
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e rro rs of state law only if they rise to the level of a constitutional violation.
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Oxborrow v. Eikenberry, 877 F.2d 1395, 1399 (9th Cir. 1989). Federal courts are
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b o und by a state's interpretation of its own laws. Estelle v. McGuire, 502 U.S. 62,
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6 7 -6 8 (1991); Himes v. Thompson, 336 F.3d 848, 852 (9th Cir. 2003).
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Where, as here, there is no reasoned decision from the state's highest court,
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the habeas court looks to the last reasoned state court decision. Ylst v.
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N u n n e m a k e r , 501 U.S. 797, 801 (1991); Van Lynn v. Farmon, 347 F.3d 735, 738
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(9 th Cir. 2003). Adjudications by state intermediate appellate courts and state trial
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c o urts are entitled to the same AEDPA deference given to a state supreme court.
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Medley v. Runnels, 506 F.3d 857, 863 (9th Cir. 2007) (en banc). Here, the last
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re a s o ne d state court decision is that of the California Superior Court for the County
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o f Sacramento. [Lodged Doc. 8.]
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II.
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B ro w n' s first argument for habeas relief is that the trial judge failed to instruct
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the jury that evidence of Brown's alleged admissions should be viewed with
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c a utio n. [Pet. at 3.] This argument relies on California state court precedent
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re q uiring that, where an admission by the defendant is used to prove a part of the
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p ro s e c utio n' s case, a trial court has a duty to give a jury instruction sua sponte e xp la ining that the jury are the exclusive judges as to whether the defendant made a n admission and whether the statement is true, and that evidence of an oral a d mis s io n by the defendant outside of court should be viewed with caution.1 People v . Zichko, 118 Cal. App. 4th 1055, 1058-59 (2004). H e re , to the extent that Brown asserts that the jury should have been ins truc te d to view with caution his statements to the victims during the crime, he is in error. California courts have held that the cautionary jury instruction need not be give n where the statement at issue itself constitutes the criminal act with which he w a s charged ­ making a criminal threat. Id. at 1059-60. T o the extent that Brown argues that the jury should have been instructed to vie w with caution his later statements to police officers, any such error is harmless. "Failure to give CALJIC No. 2.71 is harmless if it is not reasonably probable a re s ult more favorable to the defendant would have been reached absent the error. . . . Here, it is not reasonably probable defendant would have achieved a more fa vo ra b le result had the court given CALJIC No. 2.71." Higgins v. Hedgpeth, WL 1 9 0 4 8 6 6 at *15 (E.D. Cal.) (internal citations omitted). T o obtain relief in a habeas corpus proceeding for errors in the jury c ha rge , a petitioner must demonstrate that the jury instruction error so infe c te d the entire trial that the resulting conviction violates due p ro c e s s . . . . In order to make this determination, the court must e va lua te the jury instructions in the context of the charge to the jury
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C a lifo rnia Jury Instruction No. 2.71 provides: "An admission is a statement ma d e by [a] [the] defendant which does not by itself acknowledge [his][her] guilt of the crime[s] for which the defendant is on trial, but which statement tends to prove 23 [his ][he r] guilt when considered with the rest of the evidence. [¶] You are the e xc lus ive judges as to whether the defendant made an admission, and if so, whether 24 tha t statement is true in whole or in part. [¶] [Evidence of an oral admission of [a ][the ] defendant [Evidence of an [oral admission of [a] [the] defendant not 25 c o nta ine d in an audio or video recording and not made in court should be viewed w ith caution.]" CALJIC 2.71.
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a nd the entire trial process. . . . [I]f the court determines the instruction vio la te d petitioner's due process rights, he can only obtain relief if the e rro r had a substantial and injurious effect or influence in determining the jury's verdict. . . . Trial errors that do not meet this test are deemed ha rmle s s . Id . (internal quotation marks, citations and alterations omitted). Here, any error was ha rmle s s . The jury received comprehensive instructions cautioning that: (1)"before a n inference essential to establish guilt may[]be found to have been proved beyond a re a s o na b le doubt, each fact or circumstance upon which the inference necessarily re s ts must be proved beyond a reasonable doubt"; (2) "You are the sole judges of the believability of a witness and the weight to be given to the testimony of each w itne s s " ; (3) "You are not required to decide an issue of fact in accordance with the te s timo ny of a number of witnesses which does not convince you"; and (4) "You s ho uld give the testimony of a single witness whatever weight you think it d e s e rve s ." [Lodged Doc. 11 at 165-67.] These instructions provided the jury with a proper framework for evaluating the evidence and clarified that the jury need not ta k e the victims' or officer's testimony regarding Brown's out-of-court statements a s true; they were free to reject that testimony as not credible. "[W]e presume juro rs follow the court's instructions absent extraordinary situations." Tak Sun Tan v . Runnels, 413 F.3d 1101, 1115 (9th Cir. 2005). M o re o ve r, looking at the trial as a whole, the court's failure to instruct the jury that Brown's statements should be viewed with caution would most likely not ha ve changed the outcome. Brown's counsel did not seek to convince the jury that B ro w n did not make the statements at issue. Rather, the defense strategy was to c o nvinc e the jury that Brown's altercation with the victims had simply been a verbal d is a gre e me nt that did not rise to the level of a criminal threat. [Lodged Doc. 11 at 1 0 1 , 127-28.] Indeed, in closing argument, Brown's counsel characterized the case a s involving "felony bad manners," a mere "disturbance of the peace . . . that ought
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to go before Judge Judy," but that instead had been exacerbated by society's gender a nd racial stereotypes regarding black male aggression toward white females. [Lo d ge d Doc. 11 at 183, 186-87.] Brown's counsel stated, "we're not claiming it w a s n' t him or he wasn't there or this didn't happen," but rather simply argued that the issue was "whether or not his conduct is such as would reasonably lead the two fe ma le complaining witnesses to be in sustained fear," as required by the California c rimina l threat statute. [Lodged Doc. 11 at 184.] In sum, given the other cautionary jury instructions and the fact that the d e fe ns e did not dispute that Brown had made the statements, I conclude that it is not " re a s o na b ly probable a result more favorable to the defendant would have been re a c he d " had the trial court given a cautionary instruction regarding Brown's alleged a d mis s io ns . See Higgins, 2010 WL 1904866 at *15. III. B ro w n also claims that he is entitled to habeas relief because his sentence w a s "improperly enhanced twice with the same prior." [Pet. at 3.] He lists " G ro und 5" of his petition as "Illegal use of prison prior prison term, `And c o ns o lid a tio n of two previous cases; Petitioner did not consent to Pen. C. 1387.2 P ro c e d ings [sic]," and "Ground 6" as simply, "Improper Prison Sentence." [Pet. at 1 4 -1 5 .] He alleges that his prison term should be 56 months, not 60. [Pet. at 22.] H is argument is difficult to follow, but he urges that this case was "illegally c o ns o lid a te d " with another criminal case against him. [Pet. at 22.] Looking at the record, I construe these cryptic grounds to be a repetition of an a rgume nt he made on direct appeal, regarding the fact that the trial court used the s a me prior prison term to impose a one-year enhancement in both this case (case numb e r 03F08676) and in another case involving a different, unrelated charge a ga ins t him (case number 03F04345). [Lodged Doc. 3 at 9.] The state appellate
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c o urt agreed that the trial court had erred in imposing the prior prison term e nha nc e me nt more than once, and ordered that the one-year enhancement for that p rio r prison term be stricken in this case. [Lodged Doc. 3 at 9-10.] Therefore, B ro w n' s argument of sentencing error has already been remedied. In his discussion of the sentencing issue, Brown cites to California Penal C o d e section 1382(a)(1), which deals with dismissal of a case when an information is not timely filed, and California Penal Code section 1387.2, which deals with re a rra ignme nts . It is unclear how these statutes are relevant to his sentencing, or ind e e d to this case at all; he seems to be invoking those statutes in relation to case numb e rs 01F05909 and 0[3]F04345, and not in relation to the case before this court (c a s e number 03F08676). To the extent Brown is trying to make some other a rgume nt about his sentencing and/or those other criminal cases, it is so vague and inc o mp re he ns ib le that he has failed to demonstrate that he has a claim that imp lic a te s the Constitution, laws or treaties of the United States. 28 U.S.C. § 2 2 5 4 (a ). IV . B ro w n' s next claim is that he was illegally detained by a police officer in vio la tio n of the Fourth Amendment, and interrogated in violation of his Fifth A me nd me nt right against self-incrimination under Miranda v. Arizona, 384 U.S. 4 3 6 (1966). He states that he was leaving a store when Officers Jasperson and S mith stopped him, drew their guns, and told Brown to lay across the hood of their c a r. [Pet. at 13.] He alleges that the officers searched him and put him in the back of the car, and then interrogated him in violation of his Miranda rights, asking him " a b o ut guns and shootings" in the area. [Pet. at 13-14.] He asserts that he told them he "did not know anything about what they were talking about," and asked them if he was under arrest, and they told him he was not. [Pet. at 14.] He says he asked to
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le a ve but was denied permission to do so. [Pet. at 6.] He says they left him in the c a r while they talked on their telephones and then searched the area and found a b ro w n paper bag containing a handgun, after which they arrested him. [Pet. at 14.] This recital is different from Officer Jasperson's testimony at trial. The jurors he a rd that Officer Jasperson saw Brown leaving a store and called out the car w ind o w to ask Brown if they could talk to him. [Lodged Doc. 11 at 137-38.] A c c o rd ing to Officer Jasperson, Brown stopped to talk, and Officer Jasperson asked B ro w n to have a seat in the back of the police car, which Brown did. [Id. at 1383 9 .] Brown asked Officer Jasperson "what this was about," and Officer Jasperson to ld Brown that he was following up on a reported incident where Brown s up p o s e d ly pulled a gun on somebody. [Id. at 139.] Brown denied doing so. [Id.] A t that point, Officer Jasperson exited the car and tried to telephone the two victims o f Brown's threat, to see if they were available to come identify Brown as the c ulp rit. [Id. at 139-40.] When the victims did not answer his call, Officer Jasperson a s k e d two other officers to stay with Brown while Officer Jasperson went to the vic tims ' home, just around the block. [Id. at 140.] The victims were not at home, a nd Officer Jasperson returned to his car about ten minutes later. [Id.] When he re turne d , he learned that Brown had begun to talk to the two other officers about the fa c t that he owned some toy guns. [Id. at 140-41.] Brown told Officer Jasperson that the guns were at his home, and offered to show the guns to Officer Jasperson to p ro ve they were not real guns. [Id. at 141.] Brown and the police went to Brown's ho me , at which point Brown told them the guns were at his other house; Brown then ma d e a phone call and instructed an unknown person to bring the guns to a nearby lo c a tio n. [Id. at 142-43.] At the appointed place, another man brought the guns to the police, who confirmed that the guns were indeed replicas and not real firearms. [Id . at 143.] At that point, Officer Jasperson recited to Brown his Miranda rights
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a nd Brown agreed to talk to Officer Jasperson. Brown then admitted that he had b e e n angry at the women because he thought they had almost hit his new car, so he go t out of his car and walked towards the women, pointed his gun at them and ye lle d at them, although he could not recall what he had said. [Id. at 144-45.] Fa c tua l dispute aside, however, Brown's Fourth Amendment claim is denied. First, it is unclear what evidence he believes should have been suppressed under the Fo urth Amendment. Second, and more important, there is no indication that he was no t given a chance to raise a Fourth Amendment argument in state court. "Under C a lifo rnia law, a defendant can move to suppress evidence on the basis that it was o b ta ine d in violation of the [F]ourth [A]mendment." Gordon v. Duran, 895 F.2d 6 1 0 , 613 (9th Cir. 1990) (citing Cal. Penal Code § 1538.5). Where a defendant "had an opportunity in state court for `full and fair litigation' of his [F]ourth [A ]me nd me nt claim, the Constitution does not require that [he] be granted habeas c o rp us relief on the ground that evidence obtained in an unconstitutional search or s e iz ure was introduced at his trial." Id. at 613-14; see also Ortiz-Sandoval v. G o m e z , 81 F.3d 891, 899 (9th Cir. 1996) ("A Fourth Amendment claim is not c o gniz a b le in federal habeas proceedings if a petitioner has had a full and fair o p p o rtunity to litigate the claim in state court. . . . The relevant inquiry is whether p e titio ne r had the opportunity to litigate his claim, not whether he did in fact do so o r even whether the claim was correctly decided"). I also reject Brown's Miranda argument. By invoking Miranda, Brown s e e ms to be arguing that his statements while he was sitting in the police car were no t voluntary, but were coerced under pressure. However, his habeas petition does no t specify any incriminating statements that he made during that time; to the c o ntra ry, his petition asserts that he told them he did not know what they were ta lk ing about. [Pet. at 14.] Thus, Brown's petition has not alleged that he said
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a nything self-incriminating, and therefore has not alleged facts that, if true, would ind ic a te a Miranda violation. V. B ro w n also argues that he is entitled to habeas relief on due process grounds b e c a us e an impermissible "irreparable suggestion" was made to one of the victims d uring a photograph lineup. [Pet. at 6.] He alleges that sometime between S e p te mb e r 24, 2003 (the night of the incident) and September 28, police created a p ho to gra p h lineup, including Brown's photograph. [Pet. at 10-11, 15.] Brown says tha t Officer Villegas showed this initial photograph lineup to Ms. Manzo, who did no t recognize any of the pictures as the person who had threatened her. [Pet. at 11.] According to Brown, on October 4, a second photograph lineup was performed by a d iffe re nt police officer, Officer Jasperson, also including a photograph of Brown; in this second lineup, both victims identified Brown's picture as the person who had thre a te ne d them. [Pet. at 16-18.] Brown contends that his inclusion in the second line up was impermissibly suggestive. [Pet. at 18.] Although he does not articulate a c le a r argument, his theory is presumably that the second lineup was impermissibly s ugge s tive as to Ms. Manzo because she had been shown his photograph before, a nd thus, her identification of him during the second lineup may not have been b e c a us e she recognized him from the crime, but simply because she recognized him fro m the first lineup. T he trial transcript indicates that on October 4, both Ms. Manzo and Ms. K o uk lis were shown a photograph lineup, separately, and both identified Brown as the person who threatened them. [Lodged Doc. 11 at 148-49.] Both women also id e ntifie d him in person at trial. [Lodged Doc. 11 at 97-98, 119-20.] As to evidence o f an earlier lineup prior to October 4, Ms. Manzo testified only that she was shown a n earlier photograph lineup and did not recognize anyone in the lineup. [Lodged
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D o c . 11 at 124.] The trial testimony does not indicate whether Brown's photograph w a s , in fact, included in the earlier lineup; the only evidence in the record is that M s . Manzo recognized no one. Brown seems to believe that his photograph was in the earlier lineup, but does not explain the basis for that belief, and he does not point to any evidence in the record to show that. He urges that his photograph must have b e e n in the earlier lineup because the victims had given the police the license plate o f the vehicle of the person who threatened them, and Brown was the person to w ho m the vehicle was registered. [Pet. at 10-11, 15.] But it is purely speculation tha t the first lineup was created using a photograph of the person to whom the car w a s registered. That is the method that Officer Jasperson testified he used during the October 4 lineup, but there is no evidence anywhere in the record as to how the firs t lineup was created. [Lodged Doc. at 135-37.] It is not enough for Brown to s p e c ula te that his photograph must have been in the first lineup. E ve n assuming that Ms. Manzo saw Brown's photograph in two different line up s , Brown is not entitled to habeas relief on this ground. First, even if the s e c o nd lineup was impermissibly suggestive as to Ms. Manzo, there is no indication tha t it was impermissibly suggestive as to Ms. Kouklis. Trial testimony indicates tha t Ms. Kouklis picked Brown's photograph from the lineup separately from Ms. M a nz o , and had no opportunity to discuss the lineup with Ms. Manzo prior to ma k ing her identification. [Lodged Doc. 11 at 148-49.] Brown cites no evidence, a nd I have not found any, to show that Ms. Kouklis had ever seen Brown's p ho to gra p h in any lineup prior to October 4. M o re o ve r, even if the second lineup was impermissibly suggestive as to M s . Manzo because she had seen his photograph in an earlier lineup, clearly e s ta b lis he d Supreme Court law allows identifications taken at impermissibly s ugge s tive photographic lineups to be admitted so long as the identification is
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re lia b le . Manson v. Brathwaite, 432 U.S. 98, 105-06 (1977). Factors to be c o ns id e re d in assessing reliability are: the extent to which the witness had an o p p o rtunity to view the criminal at the time of the crime; the witness's degree of a tte ntio n, the accuracy of the witness's prior description of the criminal, the level of c e rta inty demonstrated by the witness at the confrontation, and the length of time b e tw e e n the crime and the confrontation. United States v. Monks, 774 F.2d 945, 9 5 6 (9th Cir. 1985). Such factors should be weighed against any corrupting effect o f the suggestive identification procedure. Id. Here, Ms. Manzo had an opportunity to focus intently on the criminal for at least several seconds at close range while he ye lle d at her and pointed a gun so that it was "almost touching" her head, and for s e ve ra l seconds thereafter while he backed away, still pointing the gun and walking b a c k w a rd s down a long driveway. [Lodged Doc. 11 at 108-12.] She identified B ro w n in the second photograph lineup on October 4, 2003, less than two weeks a fte r the threats were made, and told the jury that it "wasn't hard" to pick Brown o ut of the October 4 lineup because "I just would never forget that face." [Lodged D o c . 11 at 81, 137, 146.] Thus, evidence regarding the second lineup was a d mis s ib le even as to Ms. Manzo, because her identification was reliable even d e s p ite any arguably impermissible suggestions. V I. B ro w n' s petition also makes a related argument regarding the lineups, urging tha t his "right to equal protection and suppression of exculpatory evidence" was vio la te d because of "denial of both photo line ups given by authorities." [Pet. at 7.] A ltho ugh the petition is unclear, he seems to be arguing that the fact that Ms. Manzo d id not identify Brown in the first photograph lineup was exculpatory evidence w hic h the prosecution failed to disclose to the defense as required by Brady v. M a r y la n d , 373 U.S. 83, 87 (1963). [Pet. at 20-21.]
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B ut, as explained above, he offers no factual basis for his belief that his p ho to gra p h was included in the first lineup; therefore, Ms. Manzo's failure to pick a ny photograph out of the first lineup is not necessarily exculpatory at all. However, e ve n if there were some basis for that belief, Brown still is wrong in his Brady a rgume nt. It is true that the rule of Brady "is not confined to evidence that affirmatively p ro ve s a defendant innocent: Even if evidence is merely favorable to the accused, its s up p re s s io n violates Brady if prejudice results." Gantt v. Roe, 389 F.3d 908, 912 (9 th Cir. 2004). However, here, even assuming that Ms. Manzo's failure to pick a ny photograph from the first lineup has some exculpatory value favorable to B ro w n, and that the prosecution did not disclose that evidence to the defense, B ro w n must also show that he suffered prejudice ­ "that is, that there is a re a s o na b le probability that the outcome of the trial would have been different had the evidence been disclosed." Id. at 913. No such prejudice was suffered here. There was ample evidence identifying Brown as the person who had threatened the vic tims . First, the victims testified that the person who threatened them had become a ngry because they had gotten too close to his car; from this testimony, a jury could infe r that the perpetrator owned the car. [Lodged Doc. 11 at 89-90, 108.] The vic tims reported the license plate number of the car to the police, who identified B ro w n as its registered owner. [Id. at 135.] Second, both victims positively id e ntifie d Brown as the person who threatened them, both in the October 4 lineup a nd at trial. [Id. at 97-98, 119-21.] Third, Officer Jasperson testified at trial that B ro w n admitted to police that he had become angry with the women because they ha d almost hit his car, and admitted that he had pulled a gun on them and yelled at the m, although he could not recall exactly what he had said. [Id. at 144-45.] Officer J a s p e rs o n also told the jury how Brown had explained that the guns were not real
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guns , and had in fact provided the police with two replica guns, one black and one c hro me . [Id. at 140-43.] Officer Jasperson said he then showed the two replica guns to the victims, who both recognized the chrome gun as the gun that had been p o inte d at them. [Id. at 150-51.] The victims also testified at trial that the chrome gun Brown gave to police looked like the gun with which they had been threatened. [Id . at 98, 121-22.] Finally, even if Brown and his counsel were totally unaware that the re had been a photograph lineup prior to October 4, it is undisputed that during the trial, they learned of the existence of the earlier lineup. Ms. Manzo testified tha t, prior to October 4, a different detective had shown her another lineup in which s he recognized no one. [Id. at 124.] Yet Brown's counsel did not cross-examine M s . Manzo about that lineup to try to get more information, and he did not question O ffic e r Jasperson about whether Brown's photograph had been included in the first line up . In fact, Brown's counsel did not attempt to dispute that Brown was the p e rs o n who had yelled at the women ­ he told the jury, "we're not claiming it w a s n' t him or he wasn't there or this didn't happen." [Id.] Rather, his trial strategy w a s to convince the jury that the confrontation had not risen to the level of a c rimina l threat that would reasonably put the victims in sustained fear. [Id.] Given all the other evidence before the jury tying Brown to the crime, and the fa c t that Brown's trial strategy did not dispute that he had had an altercation with the women, I conclude that there was not a reasonable probability that the outcome o f the trial would have been different had Brown been aware that Ms. Manzo had b e e n shown an earlier lineup and had not identified a suspect in that lineup. Because Brown suffered no prejudice from this purported Brady violation, I reject his claim. V II.

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B ro w n next argues that his rights were violated because he was denied a c ha nc e to cross-examine Billy Jordan, who told the victims that Brown was the p e rs o n who had threatened them. [Pet. at 7, 21.] In the same vein, he appears to a rgue that his due process rights were violated because he was implicated by J o rd a n, who was not present at the crime scene. [Pet. at 6, 7, 21.] J o rd a n appears in a police report submitted with Brown's petition. The re p o rt, by Officer Villegas, indicates that on September 28, 2003, Ms. Manzo c o nta c te d police to give them some additional information regarding the incident on S e p te mb e r 24. Ms. Manzo apparently told Officer Villegas that her friend, Jordan, ha d seen the person who had threatened Ms. Manzo walking near Ms. Manzo's ho us e. [Pet. at 30.] Jordan told Ms. Manzo that the suspect, a local drug dealer, had s p o k e n to Jordan and told Jordan his name was "T." [Id.] The suspect asked Jordan w ha t he was doing hanging around the two women who had called the police on him, and told Jordan that he (the suspect) planned to finish off what he had started. [Id .] Jordan Jordan is also alluded to in the probable cause report completed by O ffic e r Jasperson, in which Officer Jasperson states that the victims reported that "a s ub je c t known as `T' pulled a silver handgun on them," and Officer Jasperson knew fro m prior experience with Brown that Brown went by the nickname "T." Thus, O ffic e r Jasperson's probable cause report appears to refer to Officer Villegas's re p o rt, in which Ms. Manzo stated that Jordan told her the suspect's nickname was " T ." [Pet. at 29.] H o w e ve r, there was no mention of Jordan at trial, and there was no mention o f Brown using the nickname of "T." Indeed, Brown's attorney, prior to opening s ta te me nts and outside the presence of the jury, told the court that he would object to any "hearsay references to an unnamed person named Billy." [Lodged Doc. 11 at 7 6 -7 7 .] The prosecution indicated that it would not be calling Officer Villegas, so
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the re should be no problem with any evidence regarding Jordan. [Id.] Neither the tw o victims nor Officer Jasperson mentioned Jordan. Officer Villegas's report and O ffic e r Jasperson's probable cause report were not exhibits at trial. [Lodged Doc. 1 1 at Exhibit Index.] At one point in the trial, Ms. Kouklis mentioned that, after the inc id e nt, "neighbors came up to us and said that he was threatening them about us." [Id . at 103.] This may have been a reference to Jordan's warning memorialized in O ffic e r Villegas's report. However, Brown's counsel immediately objected, and the c o urt ruled: "What the neighbor said may be stricken." [Id.] Likewise, at one point M s . Manzo began to testify that, after the original threats, she was afraid "because I k ne w that I had heard this, that he was out there and he was like ­ "; but before she c o uld even finish the sentence, Brown's counsel objected, and the court sustained the objection and struck the objected-to testimony. [Id.] Brown cannot set forth any c o gniz a b le claim regarding Jordan, because no evidence related to Jordan was b e fo re the jury at all, and thus no evidence tied to Jordan was used to convict B ro w n at trial. V III. B ro w n also seeks habeas relief on the ground that he was denied the effective a s s is ta nc e of counsel. He argues that his counsel failed to present evidence that B ro w n' s confession was false and/or that Brown did not make the confession. [Pet. a t 7.] He also complains that his counsel failed to investigate several areas, inc lud ing "the supplementary report . . . regarding the statement by `Billy Jordan,'" " the gun shots outside the victims['] house," and the first photograph lineup, which w a s allegedly favorable to Brown in that the victim did not identify Brown. [Pet. at 1 8 -1 9 .] To demonstrate ineffective assistance of counsel, Brown must show (a) that his counsel's performance was deficient, and (b) that the deficient performance
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p re jud ic e d him. Strickland v. Washington, 466 U.S. 668, 687 (1984). To show d e fic ie nt performance, he must show "that counsel made errors so serious that c o uns e l was not functioning as the `counsel' guaranteed the defendant by the Sixth A me nd me nt." Id. Counsel is "presumed to have rendered adequate assistance and ma d e all significant decisions in the exercise of reasonable professional judgment." Id. at 690. Counsel's performance must fall "outside the wide range of p ro fe s s io na lly competent assistance" before it may be deemed deficient. Id. To s ho w prejudice, Brown must show that his "counsel's errors were so serious as to d e p rive the defendant of a fair trial, a trial whose result is reliable." Id. at 687. Brown "must show that there is a reasonable probability that, but for counsel's unp ro fe s s io na l errors, the result of the proceeding would have been different. A re a s o na b le probability is a probability sufficient to undermine confidence in the o utc o me ." Id. at 694. T he California Superior Court correctly identified the proper standard for e va lua ting Brown's ineffective assistance of counsel claims by citing Strickland. [Lo d ge d Doc. 8 at 3.] I conclude that the Superior Court did not "appl[y] S tr ic k la n d to the facts of his case in an objectively unreasonable manner." Bell v. C o n e , 535 U.S. 685, 698-99 (2002). Brown did not show either a constitutionally d e fic ie nt performance or prejudice. B ro w n first argues that his counsel failed to present evidence that Brown's c o nfe s s io n was false and/or that Brown didn't make the confession. [Pet. at 7.] This d e c is io n was not outside the range of professionally competent assistance, p a rtic ula rly because the record "reveals the futility" of such a position. See L a G r a n d v. Stewart, 133 F.3d 1253, 1272 (9th Cir. 1998) (holding that counsel's d e c is io n not to argue that the defendant had killed his victim impulsively while in a ra ge , and not with premeditation, was not ineffective where the record showed that
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a n impulsivity defense would have been futile). Here, Brown's counsel was no d o ub t aware that Officer Jasperson would be testifying regarding the admissions B ro w n made to the police. Brown's counsel cross-examined Officer Jasperson a b o ut Brown's admissions, asking him again whether Brown "didn't clam up, didn't ta k e the fifth, he answered your questions?" [Lodged Doc. 11 at 151-52.] Brown's c o uns e l also pressed Officer Jasperson as to his account that Brown had agreed to c o o p e ra te in retrieving the toy guns, and didn't make police get a search warrant. [Id .] The only way to further call into doubt Officer Jasperson's testimony would ha ve been to put Brown on the stand. There was also other evidence linking Brown to the confrontation with the tw o women, even without Brown's admissions (for example, the victims' id e ntific a tio ns of Brown at the October 4 lineup and at trial, and the victims' te s timo ny that the person who threatened them was the owner of a specific car, w hic h was later found to be registered in Brown's name). In light of that record, B ro w n' s counsel apparently made a strategic decision to defend the case not by trying to convince the jury that Brown was not the person who had yelled at the w o me n, but instead by trying to convince the jury that the confrontation had not ris e n to the level of a criminal threat that would reasonably cause the victims to be in sustained fear. I conclude that was not an unreasonable strategy. Moreover, e ve n if it were, I conclude that there is not a "reasonable probability" that, but for his counsel's alleged error, the result of the proceeding would have been different. Again, there was sufficient other evidence tying Brown to the crime on which a jury c o uld have convicted him even without his own admissions. I next turn to Brown's complaint that his counsel failed to investigate "the s up p le me nta ry report . . . regarding the statement by `Billy Jordan,'" "the gun shots o uts id e the victims['] house," and the first photograph lineup, which was allegedly
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fa vo ra b le to Brown in that the victim did not identify Brown. [Pet. at 18-19.] As has a lre a d y been discussed, no evidence regarding Jordan was presented to the jury, so it is difficult to conceive of a reason why his counsel's failure to investigate Jordan's s ta te me nts further could have been unreasonable or prejudicial to the outcome of the case. As to the issue of the gun shots outside the victims' house, this is an allusion to Ms. Kouklis's testimony at trial that, the morning after she and Ms. Manzo were thre a te ne d in their driveway, "a car drove up and shot out the car window twice," b ut that she did not see who did it. [Lodged Doc. 11 at 103.] Similarly, Ms. Manzo te s tifie d that, the day after the incident, "there was somebody that drove by my ho us e and shot a couple rounds off. They came back a half hour later and shot off s o me more, so I just felt like threatened." [Lodged Doc. 11 at 116.] First, assuming tha t Brown's counsel did not investigate the shooting, such a decision was not o uts id e the range of professional judgment. It is unclear how Brown might have b e ne fitte d from further investigation of the gunshots. It may be that the defense c o uld have shown that the gunshots never happened, or that they were not fired by B ro w n, but that is purely speculative. Furthermore, the prosecution was not trying to prove that Brown had fired the shots, and there is no reason to believe the jury w o uld have concluded he did (particularly given that the jury heard that Brown's guns were not real, and that the victims lived in a crime-ridden neighborhood, such tha t the shots could have been fired by an unidentified criminal). I also conclude that Brown suffered no prejudice due to his counsel's failure to investigate the gunshots. The victims' testimony regarding the drive-by shooting w a s elicited as part of the prosecution's attempt to prove that Brown's threats c a us e d the victims "reasonably to be in sustained fear" for their own or their fa milie s ' safety, a necessary element of the crime. [Lodged Doc. 11 at 169.]
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T e s timo ny regarding the shooting tended to prove that they continued to be in fear the next day. However, there was ample other evidence at trial from which the jury c o uld have found the element of sustained fear. Ms. Kouklis testified that she was s c a re d 20 minutes later when the police arrived; that for some time afterward, she w a s "jumpy" when she would see someone walk by her driveway; that she would no w "have second thoughts about even talking to anybody who's walking by"; and tha t indeed, being threatened at gunpoint had so affected her that she was "not over it yet" at the time of trial. [Lodged Doc. 11 at 95-96.] Likewise, Ms. Manzo te s tifie d that the day she was threatened at gunpoint was "the worst day of [her] life " ; that she did not think she "could ever be more afraid than that"; that afterward s he feared "having somebody, you know, come back and get me"; that she was " a fra id . . . that [she] would run into him again"; and that she was still fearful at the time of the lineup on October 4. [Id. at 114-16, 122.] Officer Jasperson testified tha t, on October 4, the victims told him they did not want to be seen talking to him in public because they were afraid of retaliation by the person who had threatened the m. [Id. at 148.] Thus, even speculating that further investigation might have e s ta b lis he d either that the gunshots did not happen or that someone other than B ro w n was the perpetrator, there is not a "reasonable probability" that the outcome o f the trial would have been different. B ro w n also complains that his counsel failed to investigate the first p ho to gra p h lineup, which was allegedly favorable to Brown in that Ms. Manzo did no t identify Brown. [Pet. at 18-19.] As already discussed, Brown offers no more tha n speculation that his photograph was in that first lineup at all; it is equally s p e c ula tive that, had Brown's counsel investigated this first photograph lineup, he might have learned that Brown's photograph was included. Moreover, even if inve s tiga tio n might have established that Ms. Manzo failed to recognize a
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p ho to gra p h of Brown in the first-lineup, there is not a reasonable probability that the o utc o me of his trial might have been different as a result of such investigation. There was significant additional evidence identifying Brown as the person who had ye lle d at the women, including his ownership of the car that allegedly prompted the a lte rc a tio n, the identification of Brown by both victims during the October 4 lineup a nd the trial, and his own admissions to police. There is not a reasonable p ro b a b ility that the jury, upon learning that Ms. Manzo had failed to identify Brown in an earlier lineup, would have disregarded all of that additional evidence tying B ro w n to the threats. Fina lly, Brown asserts that his counsel "argu[ed] against his client" and " ne ve r discussed the discovery motion" with Brown, "nor ever consulted for a d e fe ns e ." [Pet. at 18.] He does not specify how he believes his counsel argued a ga ins t him, sheds no light on what "discovery motion" he is referring to, and p re s e nts no facts to support his conclusory statement that his counsel "[n]ever c o ns ulte d " with him. "Conclusory allegations which are not supported by a s ta te me nt of specific facts do not warrant habeas relief." Cox v. Del Papa, 542 F.3d 6 6 9 , 681 (9th Cir. 2008) (citing James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994). In sum, Brown did not show a constitutionally deficient performance or p re jud ic e as to his counsel's handling of the issues of Brown's own admissions to p o lic e , nor with regard to investigation of the issues of Jordan, the drive-by s ho o ting, or the first lineup. His claim that his trial counsel provided constitutionally ina d e q ua te assistance is denied. IX . B ro w n, in his traverse, suggests an additional ground for habeas relief; he a s s e rts that Officer Jasperson "used suggestive comments" during the lineup (p re s uma b ly meaning the October 4 lineup), and that "suggestive comments could
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ha ve been made" at the lineup. [Traverse at 5-6.] This argument does not appear in B ro w n' s petition, and was raised for the first time at the traverse phase of his fe d e ra l habeas proceedings, after the respondent's answer was filed. "A Traverse is no t the proper pleading to raise additional grounds for relief." Cacoperdo v. D e m o s th e n e s , 37 F.3d 504, 507 (9th Cir. 1994). Although a district court has d is c re tio n to consider a claim raised for the first time in a traverse, see Williams v. K r a m e r , 2009 WL 2424582 at *3 (E.D. Cal.), citing, inter alia, Jackson v. Roe, 4 2 5 F.3d 654, 656 n.1 (9th Cir. 2005), I decline to exercise that discretion here, p a rtic ula rly where the additional "claim" consists of no more than speculation. A habeas petition may be dismissed without a hearing where it consists of " c o nc lus o ry, unsworn statements unsupported by any proof or offer thereof." Phillips v. Woodford, 267 F.3d 966, 973 (9th Cir. 2001). X. In conclusion, I hold that the California Superior Court's decision was not c o ntra ry to clearly established Supreme Court precedent; it did not "appl[y] a rule tha t contradicts the governing law" set forth by the Supreme Court, and it did not " c o nfro nt[] facts that are materially indistinguishable from" a Supreme Court d e c is io n and arrive at a different result than the Supreme Court. Williams v. Taylor, 5 2 9 U.S. at 405. The Superior Court's decision was not "an unreasonable a p p lic a tio n of" clearly established Supreme Court precedent, id. at 407, and the d e c is io n was not "based on an unreasonable determination of the facts in light of the e vid e nc e presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). Brown's petition for a writ of habeas corpus is denied.

D A T E D : August 10, 2010

/s/ J. Clifford Wallace J. Clifford Wallace United States Circuit Judge
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