Braxton v. Prosper
Filing
29
ORDER DISMISSING CASE signed by Chief Circuit Judge Alex Kozinski on 8/24/12. The petition for writ of habeas corpus is DENIED. A COA will not issue. CASE CLOSED. (Manzer, C)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
MICHAEL GLENN BRAXTON,
Petitioner,
No. 2:08-cv-0787-AK
v.
ORDER
KATHY PROSPER, Warden
Respondent.
Michael Glenn Braxton was convicted of attempted murder for shooting at his
neighbor. Braxton now seeks a writ of habeas corpus under 28 U.S.C. § 2254. He
claims that the trial court’s imposition of the upper sentencing term violated his
Sixth Amendment rights. He further argues that he was denied due process by the
admission of earlier statements he made to police, the court’s erroneous jury
instructions and jury misconduct.
Background
On August 30, 1999, Braxton shot his gun into the ground following an
altercation with a neighbor. Police were called and arrested Braxton after he
admitted discharging the weapon. When the officers told him they were going to
confiscate his gun, Braxton retorted that he could easily get another one. He told
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them that his childhood nickname was “hit man” and that he had hurt people before
and wouldn’t hesitate to do so again. People v. Braxton, Nos. A096083, 110446,
2007 WL 241648, at *2 (Cal. Ct. App. Jan. 30, 2007).
Because of his arrest, the managers of his mobile park served Braxton with a
notice of eviction. Two days later, Braxton passed by the assistant manager of the
mobile park, Beatrice Bruno. According to Bruno and several bystanders, Braxton
called out Bruno’s name, pulled out a gun and shot her several times, once in the
finger and three times in the chest. Braxton fled but was arrested within the hour,
with his blood alcohol level at 0.18 percent. He admitted to the shooting. Id. at
*2–3.
At trial, Braxton defended on the ground that he “blacked out” during the
incident and didn’t intend to harm Bruno, but the jury returned a verdict of attempted
murder. Id. at *3–4. Braxton’s motion for a new trial was denied. The California
Court of Appeal upheld his conviction, and the California Supreme Court granted,
held and ultimately dismissed his petition for discretionary review after deciding
another case, People v. Black (Black II), 161 P.3d 1130 (Cal. 2007), that raised one
of the same issues. Braxton now seeks habeas relief.
page 3
Analysis
“[S]tate courts are the principal forum for asserting constitutional challenges
to state convictions.” Harrington v. Richter, 131 S. Ct. 770, 787 (2011). Federal
habeas review provides a backstop against “extreme malfunctions in the state
criminal justice systems,” but it does not function as an ordinary step in the chain of
appeals. Id. at 786 (internal quotation marks omitted). Accordingly, a state prisoner
must give state courts the opportunity to remedy the alleged constitutional errors
before he seeks relief from conviction in federal court. Baldwin v. Reese, 541 U.S.
27, 29 (2004). And, once a state court has considered and rejected the prisoner’s
federal claims on the merits, we owe substantial deference to its disposition.
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a writ
will not issue unless the state’s adjudication of the claim “resulted in a decision that
was contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1). “[A] federal habeas court may not issue the writ simply because that
court concludes in its independent judgment that the relevant state-court decision
applied clearly established federal law erroneously or incorrectly. Rather, that
application must also be unreasonable.” Williams v. Taylor, 529 U.S. 362, 411
(2000). Furthermore, the state court’s constitutional error must have had a
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“substantial and injurious effect or influence in determining the jury’s verdict.”
Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (internal quotation marks omitted).
We have less reason for restraint in the “rare cases” where a petitioner
properly exhausts his claims but the state courts nonetheless decline to reach them on
the merits. Williams v. Cavazos, 646 F.3d 626, 637–38 (9th Cir. 2011), certiorari
granted in 132 S. Ct. 1088 (2012). In such circumstances, habeas review doesn’t
frustrate federalism values because the state courts have declined to take a first pass
at petitioner’s constitutional claims. Id. at 637. Neither does it undermine “the
State’s significant interest in repose for concluded litigation,” because its courts have
chosen to leave federal issues unresolved. Id. at 637–38 (internal quotation marks
omitted). Where the state court fails to reach the merits of an exhausted federal
claim, we review de novo. Id. at 637; Lewis v. Mayle, 391 F.3d 989, 996 (9th Cir.
2004).
Here the state courts decided only one of Braxton’s federal claims on the
merits. The California Supreme Court granted review of his constitutional challenge
to the length of his sentence, which it ultimately dismissed in light of its holding in
Black II. The court’s rules allow it to grant and hold cases while it decides another
case raising the same issue. Cal. S. Ct. R. 8.512(d). Once it decides the main case, it
may “dismiss review in any pending companion case . . . that appears correctly
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decided in light of the lead case and presents no additional issue requiring resolution
by the Supreme Court or the Court of Appeal.” Cal. S. Ct. R. 8.528 advisory
committee comment. We review such a dismissal as an adjudication on the merits.
Thompson v. Lea, 681 F.3d 1093, 1095 n.3 (9th Cir. 2012). As to the remaining
claims, the California Court of Appeal was the last to consider them on the merits.
Because that court denied those claims on state law grounds without passing upon
the federal issues, we review de novo. Williams, 646 F.3d at 637.
1. Braxton claims that his Sixth Amendment rights were violated because the
state trial judge relied on facts other than his prior convictions when she imposed the
upper term for his sentence. He argues that the state judge’s statements that
“defendant has engaged in violent conduct which indicates a serious danger to
society” and “defendant’s prior convictions are numerous” were questions of fact for
the jury to determine. He relies on Cunningham v. California, 549 U.S. 270, 274
(2007), where the Supreme Court held that California’s procedure for selecting upper
terms violated the Sixth and Fourteenth Amendments because it “assigns to the trial
judge, not to the jury, authority to find the facts that expose a defendant to an
elevated ‘upper term’ sentence.”
The California Supreme Court disposed of this argument in Black II, 161 P.3d
page 6
at 1138, where it held that a sentencing judge may consider facts not found by the
jury in imposing the upper term so long as at least one aggravating factor was
established in accordance with the Sixth Amendment. Under state law, only one
aggravating factor is needed to expose defendant to the upper sentencing term. See
Butler v. Curry, 528 F.3d 624, 643 (9th Cir. 2008).
Braxton had one such aggravating factor in his prior convictions, which
included one for felony assault. The U.S. Supreme Court has consistently stated
that prior convictions are an exception to the general rule that “‘any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt.’” Butler, 528 F.3d
at 643 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)). Whether
Braxton’s previous convictions were “numerous” is part of the fact of conviction,
which the sentencing judge was entitled to find on her own. See AlmendarezTorres v. United States, 523 U.S. 224, 243–44 (1998). Because at least one
aggravating factor was established in accordance with the Sixth Amendment, the
state supreme court’s rejection of Braxton’s Sixth Amendment claim was not
contrary to, or an unreasonable application of, clearly established Supreme Court
precedent.
page 7
2. About two weeks before Braxton shot Bruno, Braxton discharged a gun in
his backyard. When officers showed up, Braxton told them he was nicknamed “hit
man” as a teenager and had no qualms about hurting people. Braxton, 2007 WL
241648, at *9. He also boasted that “it would be no big deal to go get another gun”
if police confiscated his. Id. Braxton objected to the use of those statements at trial
on the grounds that they were irrelevant and unduly prejudicial. On appeal, he
argued that the statements constituted inadmissible propensity evidence and that their
admission violated his federal due process rights. The state appeals court denied his
claims solely on state law grounds. In his habeas petition, he claims error under state
law and the federal Constitution.
A federal court will generally not grant habeas relief for state law evidentiary
errors. It’s “not the province of a federal habeas court” to second guess state courts
on issues of state law. Estelle v. McGuire, 502 U.S. 62, 67–68 (1991). Instead, we
consider whether the conviction “violated constitutional norms” and whether the
admission of the challenged evidence “so fatally infected the proceedings as to
render them fundamentally unfair.” Jammal v. Van de Kamp, 926 F.2d 918, 919
(9th Cir. 1991). “Only if there are no permissible inferences the jury may draw from
the evidence can its admission violate due process” and, even then, “the evidence
must be of such quality as necessarily prevents a fair trial.” Id. at 920 (internal
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quotation marks omitted); see also Coleman v. Johnson, 132 S. Ct. 2060, 2064
(2012) (per curiam) (noting that juries have “broad discretion” consistent with due
process “in deciding what inferences to draw from the evidence presented at trial”).
In Braxton’s case, the other uncontested evidence, including the victim’s
statements, eyewitness testimony and Braxton’s own admission to police,
overwhelmingly pointed to his guilt. Braxton therefore fails to show that the
admission of his prior statements “so fatally infected the proceedings as to render
them fundamentally unfair.” Jammal, 926 F.2d at 919.
3. Braxton also argues that the jury instructions misled jurors into believing
they first had to decide the attempted murder charge before they could contemplate
the lesser charge of assault with a firearm. The Court of Appeal found that the trial
judge initially erred in her instructions but, because she immediately corrected
herself, there was no reversible error. Braxton, 2007 WL 241648, at *10–11.
Whether or not the instruction was ambiguous or deficient under state law, habeas
relief will not lie unless the “ailing instruction . . . so infected the entire trial that the
resulting conviction violates due process.” Middleton v. McNeil, 541 U.S. 433, 437
(2004) (per curiam) (internal quotation marks omitted). Given the trial judge’s
multiple reminders to jurors of their “discretion to choose the order in which you
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evaluate each crime and consider the evidence pertaining to it,” the instruction did
not render the trial fundamentally unfair. Braxton, 2007 WL 241648, at *5 n.4.
Braxton also argues that the trial court should have instructed the jury on the
lesser offense of attempted voluntary manslaughter. The Court of Appeal upheld the
trial court’s decision not to include the lesser offense on the state law ground that
there was no evidence of provocation or imperfect self-defense. Braxton, 2007 WL
241648, at *11 (citing People v. Rios, 2 P.3d 1066, 1075 n.10 (Cal. 2000)).
Braxton’s opportunity for relief ended with the state courts. “Failure of a state court
to instruct on a lesser offense fails to present a federal constitutional question and
will not be considered in a federal habeas corpus proceeding.” Bashor v. Risley, 730
F.2d 1228, 1240 (9th Cir. 1984) (internal quotation marks omitted). A court’s failure
to include an instruction violates due process only if the error “so infected the entire
trial that the resulting conviction violates due process.” Henderson v. Kibbe, 431
U.S. 145, 154 (1977) (internal quotation marks omitted); see also Menendez v.
Terhune, 422 F.3d 1012, 1029 (9th Cir. 2005). That is certainly not the case here.
4. Braxton alleges that several jurors purposefully misrepresented the
instructions during deliberations, but the juror statements that Braxton relies on are
inadmissible under section 1150 of the California Evidence Code, as they relate to
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the way the jury interpreted and applied the instructions. See People v. Morris, 807
P.2d 949, 997 (Cal. 1991) (in bank) (stating that evidence of how the jury understood
the court’s instructions is inadmissible), overruled on other grounds by People v.
Stansbury, 889 P.2d 588, 591 n.1 (Cal. 1995); People v. Sanchez, 62 Cal. App. 4th
460, 475–76 (1998); cf. Tanner v. United States, 483 U.S. 107, 117 (1987) (reciting
the common law rule that “the admission of juror testimony to impeach a jury
verdict” is “flatly prohibited”). Braxton presents no other evidence of juror
misconduct.
Even if the juror statements were admissible, the Court of Appeal reasoned
that, at most, the declarations show confusion, not a joint and deliberate refusal to
follow instructions. Braxton, 2007 WL 241648, at *6 (citing Sanchez, 62 Cal. App.
4th at 476). Although several jurors apparently wouldn’t discuss the lesser crime
first, id. at *5, there was no evidence at all of an agreement between jury members to
disobey or deliberately misrepresent the instructions.
5. Braxton contends that the cumulative effect of the alleged errors
“mandates” reversal as a matter of due process and equal protection. State trial
errors that are insignificant by themselves may cumulatively deprive a defendant of
due process. See Lincoln v. Sunn, 807 F.2d 805, 814 n.6 (9th Cir. 1987). But the
page 11
errors Braxton alleges neither individually nor cumulatively deprived him of a
fundamentally fair trial. Given all the error-free evidence before the jury, it’s
unlikely Braxton would have received a favorable verdict absent the alleged errors.
Without a showing that there was a “substantial and injurious” effect on his trial,
Braxton is not entitled to federal habeas relief. Brecht, 507 U.S. at 637.
*
*
*
Braxton does not meet his burden of showing that the state court’s rejection of
his Sixth Amendment claim was contrary to, or an unreasonable application of,
clearly established Supreme Court precedent or that the alleged errors at trial violated
his constitutional rights. His habeas petition is therefore denied. Because Braxton
has not made a substantial showing that he was denied a constitutional right, a
certificate of appealability will not issue. See 28 U.S.C. § 2253(c)(2); Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003).
PETITION DENIED.
DATED: August 24, 2012
A
__________________________________
ALEX KOZINSKI
Chief Circuit Judge
Sitting by designation
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