Gore v. McDanials et al

Filing 50

ORDER signed by Senior Judge Terry J. Hatter, Jr on 7/6/2012 ORDERING 1 Petition for Writ of Habeas Corpus filed by Joseph K. Gore is DENIED; CASE CLOSED. (Waggoner, D)

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United States District Court
Eastern District of California

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JOSEPH K. GORE,

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CIV S-08-0448 TJH

Petitioner,
v.
E.K. McDANIALS, et al.,

Order

Respondents.

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On November 24,2001, two masked, armed men entered a residence and

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terrorized the four occupants while they burglarized their home. They tied up the

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three males in the bedroom and took the female into the livingroom, where she was

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raped three times. The rape victim testified at trial that she was raped by both men,

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while the police officers, who were present on the scene, testified that the victim told

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them only the taller man raped her while the shorter man was walking in and out of

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the room. Subsequently, Petitioner and his nephew were charged with identical

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counts of burglary, robbery, rape in concert, penetration with a foreign object in

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concert, and vehicle theft.

Order – Page 1 of 9

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In 2003, Petitioner was found guilty on all counts. The trial court sentenced

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defendant to a determinate term of forty years and an indeterminate term of 283 years

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to life. Petitioner filed a writ of habeas corpus in California state court. His petition

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was denied. He, then, filed a petition in this Court.

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Petitioner seeks a writ of habeas corpus claiming: (1) The trial court violated

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the confrontation clause by not allowing cross-examination of a witness; (2) He was

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denied a fair trial because a witness revealed Petitioner’s criminal history; (3) Jury

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instructions were improper; (4) He was denied effective assistance of counsel at trial;

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and (5) The prosecutor made improper remarks at trial and failed to correct perjured

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testimony.
The Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d),

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provides that a federal court may grant habeas relief if a state court adjudication

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resulted in a decision that (1) was contrary to, or involved an unreasonable

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application of, clearly established Federal law, as determined by the Supreme Court,

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or (2) was based on an unreasonable determination of the facts in light of the

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evidence presented in the state court proceeding.

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Petitioner contends that the court’s sustaining of an objection during a

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witness’s cross-examination was a violation of the confrontation clause. Petitioner’s

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ex-girlfriend testified at the trial. Her testimony placed Petitioner and his nephew

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together on the night of the robbery. Petitioner claims that the trial court refused to

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allow him to cross-examine her regarding a deal she made in exchange for her

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testimony against him.

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However, Petitioner misinterprets the record. The following is the objection
that Petitioner challenges:

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Defense Counsel: “So as a result of your cooperation with the police

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you got a six-month violation; is that correct?”

Order – Page 2 of 9

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Witness: “No. Actually I was ... .”

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Prosecutor: “Okay. Objection.”

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The Court: “Sustained.”

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Petitioner was not prohibited from cross-examining her. When asked if she

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was given a deal, she answered, “No”. Prosecution did not object to the answer, but

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to the narrative that she began to give following the answer. The court gave no

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indication that Petitioner’s counsel could not ask any further question. Additionally,

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Petitioner’s counsel was able to explore this line of questioning when cross-

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examining a detective.

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Petitioner contends he was denied a fair trial because the trial court denied a

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motion for mistrial after a witness revealed Petitioner’s criminal history. Criminal

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defendants have a due process right to be tried by a panel of impartial, indifferent

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jurors. Irvin v. Dowd, 366 U.S. 717, 723, 81 S. Ct. 1639, 1643, 6 L. Ed. 2d 751, 756

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(1961). However, habeas relief may only be granted when a trial error “had

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substantial and injurious effect or influence in determining the jury’s verdict.” Brecht

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v. Abrahamson, 507 U.S. 619, 627, 113 S. Ct. 1710, 1716, 123 L. Ed. 2d 353, 365-66

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(1993).

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Petitioner claims that his right to a fair trial was violated when his accomplice

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testified on cross-examination that he had run into Petitioner in prison in the past.

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Accomplice’s remark was an error. It violated the court’s order to preclude any

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testimony about Petitioner’s prior felony convictions. However, the error was cured

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by admonition and jury instructions. The court immediately admonished the jury to

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disregard the remark. Additionally, a jury instruction told the jury to treat the remark

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as though it was never made. Under these circumstances, accomplice’s remark did

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not have a substantial and injurious effect on the verdict as required by Brecht, 507

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U.S. at 627, 113 S. Ct. at 1716, 123 L. Ed. 2d at 365-66.

Order – Page 3 of 9

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Petitioner contends that a jury instruction, CALJIC 3.12, did not correctly

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embody California law. Generally, claims of error in state jury instructions are a

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matter of state law and invoke no constitutional question unless they amount to a

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deprivation of due process. Estelle v. McGuire, 502 U.S. 62, 73, 112 S. Ct. 475, 483,

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116 L. Ed. 2d 385, 399-400 (1991). To prevail, a petitioner must show that

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instructional error so infected the trial that the resulting conviction violated due

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process. Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S. Ct. 396, 400, 38 L. Ed. 2d

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368, 373 (1973).

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Petitioner claims that the trial court’s instruction was insufficient because it did

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not specifically instruct the jury to find corroborating evidence that related to an act

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or fact that is an element of the offense charged. However, the state courts have

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denied an almost identical challenge to CALJIC No. 3.12. People v. Jenkins, 34 Cal.

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App. 3d 893, 110 Cal. Rptr. 465 (1973). The court rejected the argument that unless

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the “element” language is used, the jury can find evidence sufficient even if it only

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corroborates irrelevant parts of the testimony. Jenkins, 34 Cal. App. 3d at 898, 110

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Cal. Rptr. at 469. The court held that the test is whether the jury was fully and fairly

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instructed on the applicable law without a precise language requirement. Jenkins, 34

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Cal. App. 3d at 898, 110 Cal. Rptr. at 469. Thus, since there was no state law

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violation, there is no recognizable federal question.

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Petitioner contends that he was denied effective assistance of counsel at trial

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in violation of the Sixth Amendment. The Sixth Amendment guarantees the right to

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an effective assistance of Counsel. To establish ineffective assistance of counsel,

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petitioner must show that (1) considering all circumstances, counsel’s performance

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fell below an objective standard of reasonableness, and (2) petitioner was prejudiced

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by counsel’s deficient performance because “there is a reasonable probability that, but

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for counsel’s errors, the result of the proceeding would have been different.

Order – Page 4 of 9

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Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d

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674, 678 (1984). Attorney’s strategic choices made after thorough investigation of

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law and facts relevant to plausible options are virtually unchallengeable. Strickland,

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466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.

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Petitioner claims that his counsel was ineffective for five different reasons.

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First, he claims that counsel failed to call three witnesses: Ashley Young, Teresa

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Powers and Reverend Perkins. Second, he claims that counsel failed to effectively

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cross-examine two witnesses: Theresa Oliver and Rusty Padgett. Each claim will

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be addressed individually.

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Petitioner’s niece, gave a statement to the defense investigator alleging that she

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overheard Petitioner’s accomplice telling his mother that “he needed to find the girl

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that he had sex with a sandwich bag”and asking his mother to “take care of it”

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because he doesn’t want to “get pinned for the rape that he did.” The victim in this

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case, also, testified that the man who raped her used a sandwich bag. Although the

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niece’s testimony could have cast doubt on whether Petitioner committed the rape

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himself, it would not have been effective. Petitioner was charged with rape in

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concert. This crime includes those who personally engage in the sexual act and those

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who aid and abet a person in accomplishing it. Thus, it was not relevant which of the

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two accomplices committed the rape, as long as the victim testified that both were in

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and out of the room while she was being raped. Petitioner was not prejudiced by the

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counsel’s decision since the new information would not have effected the charges

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against the Petitioner.

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A woman who housed Petitioner after the robbery, gave a statement to the

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defense investigator alleging that she overheard Petitioner’s accomplice telling her

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daughter that he and “his friends” stole the property and then “brought it to his

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uncle’s house.”

Order – Page 5 of 9

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California Evidence Code § 1200 provides that any evidence of a statement

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that was made other than by a witness while testifying at the hearing is inadmissable

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at trial. Cal. Evid. Code § 1200. However, the accomplice’s statements could be

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subject to the inconsistent statement exception in California Evidence Code § 1235.

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This exception allows for evidence of a statement made by a witness if the statement

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is inconsistent with the witness’s testimony at the hearing. Cal. Evid. Code § 1235.

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In this case, the accomplice testified at trial that he committed the robbery with his

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uncle, the Petitioner. This is inconsistent with what he purportedly said. However,

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even if the woman would have testified on trial about these statements, it is not

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reasonably likely that the outcome of the trial would have been different. The

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accomplice could have been referring to Petitioner as one of his “friends,” and it is

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not likely that this statement would have overcome all the other evidence supporting

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the conclusion that Petitioner was involved in the robbery. Thus, the decision to

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avoid calling the woman as a witness was not ineffective assistance.

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Petitioner waived the clergy-penitent privilege to allow a minister to speak to

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the defense investigator describing the conversations he had with Petitioner while he

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was in custody. Petitioner allegedly told the minister that he was not a rapist, but

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since he’s been in prison most of his life, he “should just go ahead and take the fall

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for his nephew.” The information Petitioner gave to the minister lacks credibility.

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Secondly, had the minister testified, the prosecution would have been able to ask him

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anything else he discussed with the petitioner, including other crimes he had

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committed. Petitioner, therefore, fails to show that counsel was ineffective for

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deciding not to call the minster as witness. He, further, fails to show how he was

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prejudiced as a result of that decision.

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In addition to Petitioner’s arguments regarding the counsel’s alleged failure to

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call particular witnesses, he, also, claims that his counsel was ineffective for failing

Order – Page 6 of 9

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to successfully cross-examine Petitioner’s ex-girlfriend and a friend of Petitioner.

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Petitioner’s friend gave a statement to the defense investigator that when he

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confronted Petitioner about the stolen property that he found in Petitioner’s mobile

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home, Petitioner “did not say anything.” At trial, the friend testified that when he

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asked Petitioner whether he stole the property, Petitioner said, “Yeah I did.”

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Although these testimonies are inconsistent, the counsel had no reason to know which

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of the statements was the truth. Thus, instead of impeaching the friend, counsel

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cross-examined him and tried to discredit him for potential bias. Counsel made a

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strategic choice, which is not challengeable under Strickland.

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In Petitioner’s final ineffective assistance of counsel claim, he argues that his

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counsel was ineffective for failing to cross-examine Petitioner’s ex-girlfriend about

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letters she wrote to Petitioner. In these letters she wrote that she knows Petitioner

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“wasn’t involved” and wrote to Petitioner that she told his mother that Petitioner,

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“didn’t do it.” It was reasonable for counsel not to question the ex-girlfriend about

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his letters since they consisted of her opinion of Gore’s innocence. Even though

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Petitioner presented the letters, he failed to show that, in light of those letters, the ex-

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girlfriend would have been able to give credible testimony as to his innocence beyond

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what she testified to at trial.

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Thus, Petitioner fails to show that the counsel’s actions were outside the range

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of appropriate choices that a reasonably competent attorney would have made.

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Further, none of the allegations amount to prejudice. Because Petitioner has failed

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to meet his burden under Strickland, the state court’s denial of his claim was an

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appropriate application of Supreme Court precedent.

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Petitioners, also, contends that he was denied a fair trial because of the

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prosecutor’s misconduct.

Prosecutorial misconduct rises to the level of a

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constitutional violation only when the misconduct “so infected the trial with

Order – Page 7 of 9

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unfairness as to make the resulting conviction a denial of due process. Darden v.

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Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 2471, 91 L. Ed. 2d 144, 157 (1986).

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In assessing whether a statement by a prosecutor rendered a defendant’s trial

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fundamentally unfair, the reviewing court must view the prosecutor’s statements in

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the context in which they were made. Greer v. Miller, 483 U.S. 756, 765-66, 107 S.

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Ct. 3102, 3109, 97 L. Ed. 2d 618, 630 (1987).

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Petitioner claims that prosecutor made remarks during the closing argument

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speculating that Petitioner held his pants at mid-thigh to hide a tattoo. In fact, he said

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the following: “Why would those pants only go down to mid thigh? If it were any

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other person committing that crime, he wouldn’t care because he doesn’t have a tattoo

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right there.” That statement was made in reliance on other evidence properly in front

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of the jury and is, thus, a reasonable inference, not speculation.

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Additionally, Petitioner claims that the prosecutor did not correct a statement

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a witness made during his testimony which contradicted a statement that the witness

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made to the investigator. To prove presentation of false evidence, petitioner must

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prove the following: (1) The testimony was false; (2) The prosecution knew or should

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have known that the testimony was false; and (3) The false testimony was material.

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United States v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003).

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During an interview with the defense investigator, Petitioner’s friend stated that

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when he confronted the Petitioner about the stolen items Petitioner did not admit to

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taking them. At trial, the friend testified that when he asked Petitioner whether he

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stole the items, petitioner answers “yeah I did”. As discussed above, even though the

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testimonies contradicted each other, prosecutor had no reason to know which one was

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the truth. Since prosecutor had no reason to believe the witness was testifying falsely

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at trial he had no duty to correct the testimony.

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.......
Order – Page 8 of 9

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In sum, Petitioner fails to establish that the state court adjudication resulted in

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a decision that was contrary to, or involved an unreasonable application of, clearly

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established Federal law, or was based on an unreasonable determination of the facts.

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It is Ordered that the petition for writ of habeas corpus be, and hereby is,
Denied.

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Date: July 6, 2012

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__________________________________

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_

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Terry J. Hatter, Jr.
Senior United States District Judge

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Order – Page 9 of 9