Martinez vs. Yates

Filing 51

ORDER signed by Senior Judge Terry J. Hatter, Jr on 8/10/12 ORDERING that the petition for writ of habeas corpus is DENIED. CASE CLOSED. (Mena-Sanchez, L)

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United States District Court
Eastern District of California

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ANTHONY JOE MARTINEZ,

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08-CV-02077 TJH

Petitioner,
v.
JAMES YATES, Warden,

Order

Respondent.

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Petitioner was charged in two cases. The first involved a drive-by shooting,

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which was allegedly gang motivated. In that case, petitioner was charged with the

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discharge of a firearm at an occupied motor vehicle and receipt of stolen property.

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The second occurred one and a half months later, and involved the robbery of

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a drug dealer. Petitioner was charged with robbery, residential burglary, and assault

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with a firearm. It was alleged in both cases that petitioner acted with his co-

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defendant, Edrick Brown, and in both incidences a handgun was used. The district

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attorney moved to consolidate the two cases. The court granted the motion.

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.......

Order – Page 1 of 11

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Four days into trial the prosecutor moved to amend the information to add an

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attempted murder charge with a gang enhancement.

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amendment.

The court granted the

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During closing argument, the prosecution made certain statements regarding

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a defense witness’s testimony. The prosecution was challenging the witness’s claim

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that a victim of the drive-by shooting threatened her and attempted to extort money

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out of her. The witness testified that she called defense counsel more than twenty

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times to report the harassment. The prosecutor rhetorically asked “if the [jurors] had

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any doubt that any criminal defense lawyer would know how to pick up the phone

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and inform law enforcement that an alleged victim is threatening a witness.”

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Additionally, the prosecutor made comments regarding the testimony of some

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of the prosecution’s witnesses during her closing argument. She referred to the

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robbery victim as a “pretty open guy” who “rattles on and on and on” and “tells you

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more than you need to know about himself.” The prosecutor, also, stated that the

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gang expert’s testimony “means something more than just testifying in front of [the

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jury]” because the expert’s opinion “can come up later in any other proceeding when

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his expertise is called into question,” and that it was “a significant opinion given

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under oath.”

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The prosecutor, also, revealed to the jury her trial-related thought process

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regarding some of the witnesses. She stated that she did not introduce testimony from

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Jesse Mendoza because he was a friend of the petitioner, and she was not convinced

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that Mendoza did not play a role in the robbery that petitioner was charged with. The

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prosecutor, further, revealed that she never prepared the robbery victim for his

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testimony, so as not to taint him for trial.

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During closing argument, the prosecutor argued that petitioner’s co-defendant,

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an alleged Norteño gang member, being housed in jail with a rival Sureño gang

Order – Page 2 of 11

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member did not disprove that the co-defendant was involved with the Norteños

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because the Sureños would not have known that the co-defendant committed a crime

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against their gang unless the co-defendant announced it. Lastly, the prosecution

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referred to the reasonable doubt standard as something that the jurors could determine

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through their “common sense,” and their “experience in life and expertise in day-to-

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day affairs.

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The jury found petitioner, and his co-defendant, guilty on all charges.

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Petitioner filed a writ of habeas corpus in state court alleging that: (1) The trial

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court’s decision to consolidate the two cases, and its refusal to sever the cases prior

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to trial, violated petitioner’s Fourteenth Amendment right to due process and a fair

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trial; (2) The trial court erred in granting the prosecution’s motion to amend the

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information to add an attempted murder charge; (3) The prosecutor committed

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prejudicial misconduct and violated petitioner’s Fourteenth Amendment right to due

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process and a fair trial; (4) The cumulative prejudice that occurred amounted to a

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violation of petitioner’s Fourteenth Amendment right to due process; and (5)

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Petitioner did not receive effective assistance of counsel. His petition was denied.

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Petitioner, then, filed a writ of habeas corpus in this Court.

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Under the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C.

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§ 2254(d)(1), a habeas petition pursuant to the judgment of a state court shall not be

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granted, with respect to any claim that was adjudicated on the merits in state court

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proceedings, unless the adjudication of the claim resulted in a decision that was

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contrary to, or involved an unreasonable application of, clearly established federal

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law, as determined by the United States Supreme Court, or resulted in a decision that

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was based on an unreasonable determination of the facts in light of the evidence

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presented in the state court proceeding. Cary v. Musladin, 549 U.S. 70, 74, 127 S. Ct.

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649, 652-53, 166 L. Ed. 2d 482, 487 (2006).

Order – Page 3 of 11

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The Supreme Court has never clearly established under what circumstances a

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joinder of two offenses would give rise to a due process violation. Thus, under

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AEDPA, petitioner is not entitled to habeas relief on that claim.

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Even when applying Ninth Circuit precedent, petitioner’s claim fails. There

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is no prejudicial constitutional violation of a joinder unless it actually rendered

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petitioner's trial fundamentally unfair, and, thus, violative of due process. Davis v.

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Woodford, 384 F.3d 628, 638 (9th Cir. 2004), cert. denied, Davis v. Brown, 545 U.S.

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1165, 126 S. Ct. 410, 162 L. Ed. 2d 933 (2005). This requisite level of prejudice is

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only reached if the joinder had a substantial and injurious effect on the jury’s verdict.

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Davis, 384 F.3d at 638. In evaluating prejudice, the Ninth Circuit focuses specifically

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on cross-admissibility of evidence, and the danger of “spillover” from one charge to

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another, especially where one set of charges is weaker than the others. Davis, 384

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F.3d at 638. Under California Evidence Code § 1101(b), uncharged misconduct can

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be used as evidence to prove identity. People v. Ewoldt, 7 Cal. 4th 380, 403, 27 Cal.

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Rptr. 2d 646 (1994). Petitioner and his co-defendant were identified jointly using a

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semiautomatic handgun in both incidences. This evidence was cross-admissible

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because it established identity by showing that the petitioner and his co-defendant

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acted together. There was, also, no disparity in the strength of the two cases based

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on the record at the time of the ruling. In each situation, the victims identified the

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petitioner and his co-defendant as the perpetrators. Petitioner has not shown that his

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joinder was contrary to clearly established federal law, or was based on an

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unreasonable determination of the facts. Therefore, petitioner is denied habeas relief

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on that claim.

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Because the trial court did not err in granting the motion to consolidate the

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charges, and petitioner has not shown that the decision resulted in a trial that was

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fundamentally unfair, petitioner’s claim that the court erred by refusing to sever the

Order – Page 4 of 11

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charges against him is, also, denied habeas relief.

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In petitioner’s second claim, he alleges that the trial court erred in granting the

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prosecution’s motion to amend the information four days into trial to include an

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attempted murder charge because petitioner was prejudiced by lack of notice of the

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new allegation. The Supreme Court has never established under what circumstances

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a prosecutor’s motion to amend the information would lead to a constitutional

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violation. Therefore, this claim is denied habeas relief.

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Under California law, petitioner’s second claim still fails. California Penal

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Code § 1009 states that amendments are permitted at any stage of the trial, provided

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the amendment does not change the offense charged in the original information to one

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not shown by the evidence taken at the preliminary examination, and the defendant

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is not prejudiced. People v. Winters, 221 Cal. App. 3d 997, 1005, 270 Cal. Rptr. 740,

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745 (1990). It is under the sound discretion of the trial court to grant a prosecutor’s

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amendment. Winters, 221 Cal. App. 3d at 1005. The prosecutor argued that the

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evidence introduced at the preliminary examination, that established the firing at an

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occupied vehicle count, also, supported the attempted murder count. Thus, the

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amendment was not supported by newly presented evidence. Furthermore, the record

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shows that defense counsel was aware of the prosecutor’s intent to add the attempted

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murder charge several months before the start of the trial, giving petitioner adequate

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notice.

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In petitioner’s third claim, he alleges that the prosecutor committed

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prosecutorial misconduct and violated his Fourteenth Amendment right to due

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process and a fair trial during her closing argument by: (1) Introducing facts not in

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evidence; (2) Vouching for witnesses; and (3) Denigrating the reasonable doubt

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standard. During trial, petitioner’s counsel failed to object to this alleged misconduct.

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Federal habeas review is barred if a state court declined to address a prisoner’s

Order – Page 5 of 11

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federal habeas claims because the prisoner failed to meet a state procedural

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requirement, unless the prisoner can show cause and prejudice, or demonstrate that

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failure to consider the claims will result in a fundamental miscarriage of justice.

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Coleman v. Thompson, 501 U.S. 722, 750, 111 S. Ct. 2546, 2565, 115 L. Ed. 2d 640,

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669 (1991). For the claim to be federally barred, the state court decision to decline

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to address a claim must rest on a state law ground that is independent of a federal

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question and adequate to support the judgment. Coleman, 501 U.S. at 729. To

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qualify as an independent ground, the state law basis for the decision must not be

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interwoven with federal law. La Crosse v. Kernan, 244 F.3d 702, 704 (9th Cir.

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2001). To qualify as an adequate ground, the state rule must be well-established at

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the time of the default and consistently applied. Bennett v. Mueller, 322 F.3d 573,

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583 (9th Cir.), cert. denied, 540 U.S. 938, 124 S. Ct. 105, 157 L. Ed. 2d 251 (2003).

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Under California law, a defendant may not complain on appeal of prosecutorial

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misconduct unless in a timely fashion – and on the same ground – the defendant made

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an assignment of misconduct and requested that the jury be admonished. People v.

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Samayoa, 15 Cal. 4th 795, 841, 64 Cal. Rptr. 2d 400, 431 (1997). This rule applies

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when a party fails to object to misconduct done during closing argument. Samayoa,

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15 Cal. 4th at 842. The Ninth Circuit acknowledged this contemporaneous-objection

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rule when a party fails to object during closing argument. Hernandez v. Smith, 100

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Fed. Appx. 615, 617 (9th Cir. 2004). California’s contemporaneous-objection rule is

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independent of federal law. Fairbank v. Ayers, 650 F.3d 1243, 1256 (9th Cir. 2011).

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Petitioner’s counsel failed to object to the prosecutor’s alleged misconduct during her

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closing argument. The California Court of Appeal stated that petitioner’s claim was

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procedurally barred because he failed to object during trial. Federal habeas review

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is barred if a state court declined to address a prisoner’s claims because the prisoner

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failed to meet a state procedural requirement. Thus, petitioner’s claim is procedurally

Order – Page 6 of 11

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barred.

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Petitioner contends this procedural default was the result of ineffective

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assistance of counsel. Attorney error that constitutes ineffective assistance of counsel

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is cause to excuse a procedural bar. Coleman, 501 U.S. at 753. For petitioner to

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prove ineffective assistance of counsel, he must show that counsel made errors so

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serious that counsel was not functioning as the right to counsel guaranteed by the

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Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,

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2064, 80 L. Ed. 2d 674, 693 (1984). The petitioner must, also, show that this

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deficient performance prejudiced the defense, which requires showing that counsel's

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errors were so serious as to deprive the petitioner of a fair trial. Strickland, 466 U.S.

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at 687. Furthermore, when AEDPA applies, the question is not whether counsel's

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actions were reasonable, but whether there is any reasonable argument that counsel

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satisfied Strickland's deferential standard. Harrington v. Richter, __ U.S.__, 131 S.

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Ct. 770, 788, 178 L. Ed. 2d 624, 643 (2011). Because many lawyers refrain from

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objecting during opening statement and closing argument, absent egregious

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misstatements, the failure to object during opening statement and closing argument

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is within the “wide range” of permissible professional legal conduct. United States

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v. Necoechea, 986 F.2d 1273, 1281 (9th Cir. 1993). Petitioner alleges that his

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counsel was ineffective because he did not object to the prosecutor’s alleged

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misconduct during her closing argument. Petitioner has failed to show that the

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prosecutor’s comments were egregious misstatements, therefore, defense counsel’s

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failure to object fell within the range of permissible legal conduct. Thus, petitioner

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has not shown he received ineffective assistance of counsel, and the procedural bar

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still applies.

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Even if petitioner’s claim were not procedurally barred, the claim is still

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without merit. Prosecutorial misconduct will be held to violate the constitution only

Order – Page 7 of 11

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if it so infected the trial with unfairness as to make the resulting conviction a denial

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of due process. Parker v. Matthews,

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32, 39 (2012). When it is alleged that a prosecutor's statements rendered a trial

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fundamentally unfair, the remark must be placed within the context of the entire trial.

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Greer v. Miller, 483 U.S. 756, 765-66, 107 S. Ct. 3102, 3109, 97 L. Ed. 2d 618, 630

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(1987). It is not enough that a prosecutor’s remarks were undesirable, or even

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universally condemned. Darden v. Wainwright, 477 U.S. 168, 180, 106 S. Ct. 2464,

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2471, 91 L. Ed. 2d 144, 157 (1986). During closing argument, prosecutors have

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considerable leeway to strike “hard blows” based on the evidence and all reasonable

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inferences from the evidence. United States v. Hermanek, 289 F.3d 1076, 1100 (9th

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Cir. 2002).

U.S. , 132 S. Ct. 2148, 2153, 183 L. Ed. 2d

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Petitioner claims that the prosecution committed misconduct by referring to

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facts not found in evidence. In the first instance, the prosecution was challenging a

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defense witness’s claim that a victim of the drive-by shooting threatened her and tried

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extorting money from her. When a witness takes the stand, his or her credibility may

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be impeached and the testimony may be assailed. Portunondo v. Agard, 529 U.S. 61,

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69, 120 S. Ct. 1119, 1125, 146 L. Ed. 2d 47, 56 (2000). In the case at bar, the

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prosecutor was challenging the credibility of a witness’s claim and drawing

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inferences from the evidence, or lack of evidence, presented at trial. Therefore,

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petitioner has failed to show that the prosecution committed misconduct.

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Petitioner alleges that the prosecutor, also, referred to facts not in evidence

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when she revealed her trial-related thought process by stating why she chose not to

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call Mendoza as a witness, and by stating that she never prepared the robbery victim

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for his testimony. Petitioner, however, fails to show any authority to support the

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argument that this constitutes prosecutorial misconduct.

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Petitioner, further, alleges that the prosecutor referred to facts not in evidence

Order – Page 8 of 11

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when she argued that petitioner’s co-defendant being housed in jail with a Sureño

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gang member did not disprove that petitioner’s co-defendant was not involved with

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the Norteño gang. The defendants were charged with a gang enhancement, and the

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gang expert testified on cross-examination that the co-defendant was being housed

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with a Sureño in jail. The prosecutor’s argument was, therefore, an inference drawn

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from the gang evidence presented during trial. Thus, petitioner has not shown that

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the prosecutor committed misconduct.

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Petitioner claims that the prosecutor committed misconduct by vouching for

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the robbery victim and the gang expert during her closing argument. A prosecutor

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vouches for the credibility of a witness when he or she implies that the government

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can guarantee the witness's veracity by placing the prestige of the government behind

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a witness, or by suggesting that information not presented to the jury supports the

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witness's testimony. United States v. Parker, 241 F.3d 1114, 1119-20 (9th Cir. 2001).

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In both instances, the prosecutor never personally assured the jury of the witness’s

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honesty, nor did she make references to information not presented to the jury to

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support the witness’s testimony. Furthermore, the jury received California Jury

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Instruction, Criminal (“CALJIC”) 2.20, that the jury is the sole judge of the

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believability of witnesses and the weight to be given to each witness’s testimony;

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CALJIC 2.80, that the jury is not bound by an expert’s opinion and it is to give each

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opinion the weight it feels the expert deserves; and CALJIC 1.02, that statements

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made by attorneys during trial are not evidence. Petitioner has not shown that the

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prosecution committed misconduct. And, because the jury was properly instructed,

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the prosecutor’s comments did not result in an unfairness that deprived the petitioner

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of due process.

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Lastly, petitioner claims that the prosecutor committed misconduct by allegedly

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denigrating the reasonable doubt standard. The jury is regularly presumed to accept

Order – Page 9 of 11

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the law as stated by the court, not as stated by counsel.

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Medina-Casteneda, 511 F.3d 1246, 1250 (9th Cir.), cert. denied, Medina-Casteneda

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v. United States, 554 U.S. 908, 128 S. Ct. 2946, 171 L. Ed. 2d 874 (2008). At the

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close of petitioner’s trial, the court instructed the jury that if anything said by the

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attorneys during closing argument conflicts with the jury instructions on the law, the

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jury must follow the court’s instructions. The jury was, also, instructed with CALJIC

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2.90, that a defendant is presumed innocent and explaining the reasonable doubt

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standard. Even if the prosecution’s comment on the reasonable doubt standard were

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a misstatement, the jury was properly instructed, and told to follow the law as stated

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by the court. Therefore, in the context of the entire trial, the comment did not so

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infect petitioner’s trial with unfairness as to make the resulting conviction a denial

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of due process.

United States v.

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In petitioner’s fourth claim, he alleges that the cumulative prejudice that

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occurred during his trial amounted to a violation of his Fourteenth Amendment right

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to due process. The combined effect of multiple errors may justify habeas relief if

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it renders a trial fundamentally unfair, even where each error considered individually

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would not require reversal. Fairbank, 650 F.3d at 1257. However, where no claims

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rise to the level of constitutional error, there is nothing to accumulate to the level of

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a constitutional violation.

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individually do not reach the level of constitutional error, thus, they have not

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accumulated into a denial of due process. Therefore, petitioner is denied habeas

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relief on this claim.

Fairbank, 650 F.3d at 1257. Petitioner’s claims

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In petitioner’s fifth claim, he argues that he received ineffective assistance of

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counsel because his counsel failed to object to the alleged prosecutorial misconduct

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in claim three. As stated above, this claim is without merit. Thus, petitioner is not

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entitled to habeas relief.

Order – Page 10 of 11

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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: August 10, 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 11 of 11