Mitchell v. Barnes

Filing 22

ORDER signed by Magistrate Judge Edmund F. Brennan on 12/08/11 ordering petitioner's application for a writ of habeas corpus is denied. The clerk is directed to close the case. The court declines to issue a certificate of appealability. CASE CLOSED. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DARRYL LA’VON MITCHELL,
Petitioner,

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vs.

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No. CIV S-09-0785 EFB P

R. E. BARNES,
Respondent.

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ORDER
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Petitioner is a state prisoner proceeding in propria persona with an application for a writ

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of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2006 judgment of

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conviction entered against him in the Solano County Superior Court on two counts of second

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degree robbery, with enhancements for serving two prior prison terms. He seeks relief on the

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grounds that: (1) the evidence introduced at his trial was insufficient to support his conviction on

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the robbery counts; (2) the trial court violated his right to due process in failing to sever the

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robbery counts; and (3) his trial counsel rendered ineffective assistance by failing to move for

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severance. Upon careful consideration of the record and the applicable law, the court finds that

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petitioner’s application for habeas corpus relief must be denied.

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I.

Background1

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These consolidated appeals concern two robberies that occurred in
the city of Vallejo, on the night of April 29, 2006. Carlos Trinidad
was accosted by a woman, who was soon joined by several other
people. Trinidad was knocked unconscious, and had his wallet and
cell phone taken. A short while later, a few blocks away, Peter
Bedolla was accosted by a woman, who was then joined by several
others. Bedolla was hit in the head and robbed. Neither victim
was able to identify his attackers, but a few hours after the attack
on Trinidad, Darryl Lavon Mitchell (Mitchell) tried to sell
Trinidad’s cell phone to the victim’s stepdaughter. The next day
an accomplice gave a statement to the police, and ultimately
testified against Mitchell and his codefendant Arthur Lee Walton
(Walton) at their joint trial.

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Mitchell was charged and convicted of the robbery of Trinidad and
Bedolla, but the jury found not true an enhancement allegation
pursuant to Penal Code section 12022.7, subdivision (b)2 with
respect to the Bedolla robbery. The jury also found Walton guilty
of the Bedolla robbery,3 and found true the allegation that he
personally inflicted great bodily injury.

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On appeal, Mitchell contends that his convictions must be reversed
because they are based upon uncorroborated accomplice testimony
that also was so contradictory and unreliable that it was
insufficient to support the jury findings of guilt. He further
contends that he was prejudiced by the trial court’s failure, sua
sponte, to sever the two counts of robbery, and that his trial
counsel rendered ineffective assistance by failing to move for
severance.

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Walton contends the court abused its discretion by denying his
motion to sever his trial from Mitchell’s, and committed
prejudicial error by failing to give a limiting instruction with
respect to the evidence that Mitchell possessed the cell phone
taken in the Trinidad robbery, and failing to modify another
standard instruction on the inferences that may be drawn from
possession of stolen property to specify that it applied only to
Mitchell.

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In its unpublished memorandum and opinion affirming petitioner’s judgment of
conviction on appeal, the California Court of Appeal for the First Appellate District provided the
following factual summary.

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2

Statutory references are to the Penal Code unless otherwise stated.

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Walton was not charged with the Trinidad robbery.
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We shall affirm the judgment as to both defendants.

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Facts4

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Trinidad Robbery

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Carlos Trinidad testified that on April 29, 2006, at approximately
8:30 or 9:00 p.m., he was walking home from work in Vallejo. He
was carrying his cell phone, $120 in cash, and a check for $950. In
the vicinity of Alameda and Florida Streets, a skinny African
American woman approached him, but Trinidad kept walking.
Trinidad began to run when the woman kept following and yelling.
She reached out and grabbed him by his shirt. Then several
African American men converged upon him, threw him down and
hit him in the head.5 They ripped his pants near his pocket, and
took his wallet, his paycheck and his cell phone. He lost
consciousness as a result of the attack, but somehow managed to
walk home, and was taken to the hospital. Trinidad told the police
he could not identify the people who robbed and beat him.

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Trinidad’s stepdaughter, Berenice Gaaolegos, testified that she
went to the hospital to see her stepfather at about 10:00 p.m. She
called Trinidad’s cell phone and a man with a Puerto Rican accent
answered. She asked him how he got the cell phone, and he said
he found it in the street. She pretended that the phone belonged to
her, and agreed to pay him a $20 reward if he returned the phone.
She then contacted the police, and met with Detective Pucci.
While she was at the police station a different person, named
Darryl, called her several times, said he wanted $10 for the phone,
and wanted to meet in five minutes. Gaaolegos agreed to meet
Darryl, and the police followed her to the agreed meeting place.
When she arrived at the meeting place in front of a tire store, at
approximately 1:30 a.m., Mitchell came over to her with the cell
phone. He was arrested by the police after Gaaolegos confirmed
that the cell phone belonged to her stepfather.6

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Consistent with the standard of review, we summarize the facts in the light most
favorable to the judgment.

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Trinidad was not sure how many people attacked him, but estimated it was four men.

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Although Trinidad accompanied Gaaolegos and the police to the meeting with
Mitchell, he was still not feeling well and stayed in the car. He testified that he did not know
Mitchell and never gave him permission to have his cell phone.

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Bedolla Robbery

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At about 11:13 that same evening, three Vallejo police officers
were dispatched in response to a call about a “man down.” They
found Peter Bedolla lying on the street in the 1300 block of Sutter
Street, near an alley. Bedolla had suffered head injuries, was
unable to speak, and was transported to the hospital. On Kentucky
Street, east of the intersection of Sutter and Kentucky, the police
found Bedolla’s wallet and some of its contents. His cell phone
was never recovered.

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The police canvassed the area, but were unable to find any
witnesses. Bedolla’s ex-wife, Cheryl Bedolla, with whom he still
resided, testified that she last saw Bedolla at about 9:45 or 10:00
o’clock that evening. The police came to her house at about 3:30
a.m. and told her that Bedolla had been taken to the hospital. They
gave her his keys, and she identified the wallet as belonging to
Bedolla. As of the time of trial, Bedolla was still hospitalized. He
suffered brain damage and was unable to communicate.

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The parties stipulated that Bedolla suffered great bodily injury
within the meaning of section 12022.7, subdivision (b).

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Accomplice Testimony of Tiffany Gipson
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The day after the robberies, the Vallejo police arrested Tiffany
Gipson on unrelated drug charges. Gipson gave a statement to
Detective Pucci while she was under the influence of drugs.7
Gipson testified that she made the statement because the police
told her they could make the “dope” disappear, and she wanted to
go home. She gave the police the least amount of information she
thought was necessary to get released.

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Based upon her statement, Gipson was charged with both robberies
as a codefendant of Walton and Mitchell. Pursuant to a negotiated
plea, she pleaded guilty to the Trinidad robbery. The prosecutor
dismissed the second robbery count, and she was promised
probation in exchange for her truthful testimony.

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Gipson testified that she had known Walton, whose nickname was
“Moosie,” and Mitchell for a few years. Gipson used crack
cocaine with Walton, Mitchell, Belinda Gaitlin, also known as
“Joy,” and Marcy Thompson, whom Gipson called “Diamond.”
The five of them were using crack cocaine together on the evening
of April 29, 2006. At around 9:00 or 10:00 p.m., Gipson was
driving with Diamond in a gray BMW when they saw an Hispanic
man walking down Lozier Alley off of Alameda Street. Diamond
got out of the car, approached the man, and hit him in the face.

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The two and one-half hour interview of Gipson was videotaped and played for the jury.
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Mitchell and Walton came out of a nearby apartment, and assisted
Diamond while Gipson remained in the car as a lookout. Joy was
also in the alley. Mitchell and Walton patted the man’s pockets,
but did not hit him. Mitchell and Walton ran back into the
apartment building, and Diamond came back to the car. Gipson
believed that Diamond got all the cash, but she gave Gipson drugs.
Gipson testified that all they took was cash. She did not see a cell
phone taken in this robbery.

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Gipson and Diamond continued to drive around and use drugs, and
a short while later they picked up Mitchell, and then Walton. Joy
was also in the car, sitting between Mitchell and Walton. While
they smoked crack they developed a plan to have Joy entice a man
to an apartment off Sutter Street so they could rob him. Sometime
between 10:00 p.m. and midnight, while Diamond, Gipson,
Mitchell and Walton were driving around, they saw Joy with an
Hispanic man at Carolina and Sutter Streets.8 Joy did not succeed
in getting the man to the apartment, so they drove past her, and
Diamond, Walton and Mitchell got out of the car. Gipson
remained in the car as a lookout. Diamond took the first swing at
the man. After the man fell to the ground, Walton stomped on the
man’s head numerous times. Mitchell took the man’s cell phone,
but Gipson did not see him touch the victim. The attack lasted less
than 10 minutes. The man was not moving when Diamond, Joy,
Mitchell, and Walton returned to the car. Joy took the money out
of the man’s wallet, and Walton threw the wallet out of the car
near a baseball park off of Sutter Street. Joy kept $40, and
Diamond, Walton, and Mitchell split the rest. Gipson was given
more drugs for being the lookout.

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Gipson testified that in her police interview she did not initially
mention Walton as one of the robbery participants because he was
her friend. Instead, she referred to a “young dude” who did not
exist. She did not mention Walton until Detective Pucci brought
him up. She also acknowledged that being under the influence of
drugs made it difficult for her to remember things clearly.

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Tamika Darnes
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Tamika Darnes had been dating Walton for several months before
April 29, 2006. On April 17, 2006, she was stabbed by a person
she described only as a “Mexican.” She and Walton had a rocky
relationship, and around the time the robberies occurred, Darnes
was facing a misdemeanor battery charge involving Walton.

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Bedolla was found at Sutter and Kentucky Streets. In her videotaped interview and in
the testimony at trial, Gipson maintained that the second robbery was at Sutter and Carolina
Streets, which was about three blocks away from the intersection where the police found
Bedolla.

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Darnes first met Detective Pucci while he was investigating the
stabbing incident. Then, on May 2, when Detective Pucci asked if
she knew anything about why the police were looking for Walton,
she told him she had only heard on the street that he was hiding
from the police. On May 9, Darnes told Detective Pucci that, in a
telephone call, Walton had told her he had been in a car on Sutter
Street, and had jumped out of the car when he saw Joy in an
altercation with a Mexican. Walton said he hit the man and the
man passed out. When Darnes brought the incident up again later,
Walton denied it. Darnes believed Diamond was also involved,
and she suspected Diamond had a relationship with Walton beyond
the brother-sister type of relationship he claimed to have with
Diamond.

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At Detective Pucci’s request, Darnes made a recorded call to
Walton. During the call, Darnes asked if Walton remembered
telling her about how he “hit that Mexican on the street,” and
whether he knew the man was in the hospital. Walton denied that
he told her he hit anybody. He said he knew about it, but that he
was not there, and other people did it. The rest of the call
concerned an argument over Darnes’s accusation that Walton was
spending time with Diamond, and Walton’s denial. Eventually, he
hung up on her.

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Darnes testified that the conversation she had with Walton that she
described in her videotaped statement, in which he said he hit the
Mexican, had occurred before she was stabbed. She told Detective
Pucci about it because she believed she had been stabbed in
retaliation for Walton’s attack on another Mexican. She did not
want to testify against Walton at trial, but was under subpoena.9

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Other Police Investigation

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Peter Bedolla’s cell phone was never recovered. Detective Pucci
acknowledged that he used harsh interrogation techniques with
Gipson in the videotaped interview because Bedolla’s condition
was grave, and, at the time of the interview, they had no
information about who was responsible. A search of Walton’s last
known address revealed nothing of evidentiary value.

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Detective Pucci also went to the known crack house at 1308 Sutter
and attempted to interview Joy, but she would not talk. Detective
Pucci also spoke to an unidentified man of Spanish descent who
was present.

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Darnes and Walton were engaged, but their plans to be married before the sentencing in
this case were administratively delayed.

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Answer, Ex. F (hereinafter Opinion), at 1-7.

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After his conviction was affirmed by the California Court of Appeal, petitioner filed a

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petition for review in the California Supreme Court, in which he raised the same claims that are

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contained in the petition before this court. Answer, Ex. G. That petition was summarily denied.

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Answer, Ex. H.

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II.

Analysis

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A. Standards for a Writ of Habeas Corpus

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An application for a writ of habeas corpus by a person in custody under a judgment of a

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state court can be granted only for violations of the Constitution or laws of the United States. 28

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U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or

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application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California,

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202 F.3d 1146, 1149 (9th Cir. 2000).

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Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas
corpus relief:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court shall
not be granted with respect to any claim that was adjudicated on
the merits in State court proceedings unless the adjudication of the
claim (1) 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; or

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(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.

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Under section 2254(d)(1), a state court decision is “contrary to” clearly established

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United States Supreme Court precedents if it applies a rule that contradicts the governing law set

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forth in Supreme Court cases, or if it confronts a set of facts that are materially indistinguishable

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from a decision of the Supreme Court and nevertheless arrives at different result. Early v.

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Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-406 (2000)).
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Under the “unreasonable application” clause of section 2254(d)(1), a federal habeas

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court may grant the writ if the state court identifies the correct governing legal principle from the

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Supreme Court’s decisions, but unreasonably applies that principle to the facts of the prisoner’s

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case. Williams, 529 U.S. at 413. A federal habeas court “may not issue the writ simply because

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that court concludes in its independent judgment that the relevant state-court decision applied

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clearly established federal law erroneously or incorrectly. Rather, that application must also be

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unreasonable.” Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (internal

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citations omitted) (it is “not enough that a federal habeas court, in its independent review of the

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legal question, is left with a ‘firm conviction’ that the state court was ‘erroneous.’”). “A state

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court’s determination that a claim lacks merit precludes federal habeas relief so long as

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‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Harrington

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v. Richter, 131 S. Ct. 770, 786 (2011).

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If the state court’s decision does not meet the criteria set forth in § 2254(d), a reviewing

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court must conduct a de novo review of a habeas petitioner’s claims. Delgadillo v. Woodford,

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527 F.3d 919, 925 (9th Cir. 2008). See also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008)

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(en banc) (“[I]t is now clear both that we may not grant habeas relief simply because of §

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2254(d)(1) error and that, if there is such error, we must decide the habeas petition by

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considering de novo the constitutional issues raised.”).

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The court looks to the last reasoned state court decision as the basis for the state court

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judgment. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state

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court decision adopts or substantially incorporates the reasoning from a previous state court

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decision, this court may consider both decisions to ascertain the reasoning of the last decision.

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Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). “When a federal claim

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has been presented to a state court and the state court has denied relief, it may be presumed that

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the state court adjudicated the claim on the merits in the absence of any indication or state-law

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procedural principles to the contrary.” Harrington, 131 S. Ct. at 784-85 (2011). That
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presumption may be overcome by a showing “there is reason to think some other explanation for

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the state court’s decision is more likely.” Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797,

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803 (1991)). However, when it is clear that a state court has not reached the merits of a

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petitioner’s claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a

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federal habeas court must review the claim de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th

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Cir. 2003).

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Where the state court reaches a decision on the merits but provides no reasoning to

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support its conclusion, a federal habeas court independently reviews the record to determine

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whether habeas corpus relief is available under § 2254(d). Himes v. Thompson, 336 F.3d 848,

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853 (9th Cir. 2003). “Independent review of the record is not de novo review of the

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constitutional issue, but rather, the only method by which we can determine whether a silent

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state court decision is objectively unreasonable.” Id. Where no reasoned decision is available,

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the habeas petitioner has the burden of “showing there was no reasonable basis for the state court

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to deny relief.” Harrington, 131 S. Ct. at 784.

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B. Petitioner’s Claims

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1. Insufficient Evidence
Petitioner’s first ground for relief is stated as follows:
Where, exclusive of the accomplice testimony, the only evidence
presented in the prosecution’s case-in-chief relating directly to
petitioner (Mr. Mitchell) guilt of the robberies consisted of his
possession of the recently stolen cell phone from the first robbery,
did the court err in holding that this possession alone was legally
sufficient to corroborate the accomplice and identify petitioner
(Mr. Mitchell) as a perpetrator in both robberies, without the need
for independent corroboration regarding the possession of the
stolen phone?

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Pet. at 5.
In his second ground for relief, petitioner asks:
Did the court in [sic] err in finding the evidence sufficient to link
petitioner (Mr. Mitchell) to the commission of the second robbery
(despite the lack of physical evidence, witness identification or
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acts or admissions by Mr. Mitchell) based on Mr. Mitchell’s
possession of the stolen phone from the first robbery and the
inference of a common scheme or plan from shared similarities of
the two robberies?

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Id. at 7. The court will construe these two grounds for relief as a claim that the evidence

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introduced at petitioner’s trial was insufficient to support his conviction on the robbery counts

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because the testimony of his accomplice was insufficiently corroborated and the remaining

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evidence against him did not support the jury verdicts.

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Pursuant to California law, a criminal conviction must be based on more than
uncorroborated accomplice testimony. Specifically, Cal. Penal Code § 1111 provides, in
relevant part:

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A conviction can not be had upon the testimony of an accomplice
unless it be corroborated by such other evidence as shall tend to
connect the defendant with the commission of the offense; and the
corroboration is not sufficient if it merely shows the commission
of the offense or the circumstances thereof.

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The California Court of Appeal concluded that the accomplice testimony in this case, which was

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provided by Gipson, was sufficiently corroborated under state law and that the evidence

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introduced at petitioner’s trial was sufficient to support his conviction on both robbery counts.

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The court reasoned as follows:

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1. Corroboration of Accomplice Testimony and Sufficiency of
the Evidence

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At the conclusion of the prosecution’s case, Mitchell’s defense
counsel moved for a judgment of acquittal. (See People v. Belton
(1979) 23 Cal.3d 516, 521-523.) He argued that there was
insufficient independent corroboration of Gipson’s accomplice
testimony as to either the Trinidad or the Bedolla robbery. The
court denied the motion. It acknowledged that defense counsel
could make a strong argument that Gipson was not a credible
witness. Nevertheless, the court found Mitchell’s possession of
the cell phone, and the circumstances of the Trinidad robbery and
its occurrence close in time and place to the Bedolla robbery, was
sufficient corroboration to submit the issue to the jury.

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Defendant contends the court erred in denying his motion for
acquittal and that the judgment should be reversed because his
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conviction rests on the testimony of an accomplice whose
testimony was not corroborated by sufficient and competent
evidence, in contravention of section 1111, and because Gipson’s
testimony was so riddled with discrepancies and irreconcilable
conflicts that it did not constitute substantial evidence.

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The trial court applies the same standard when ruling on a motion
for acquittal that this court follows when we review the sufficiency
of the evidence to support a judgment. (Veitch v. Superior Court
(1979) 89 Cal.App.3d 722, 727.) When reviewing the sufficiency
of the evidence to support the judgment this court must determine
whether “‘”after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”’
[Citation.] Conflicts and even testimony which is subject to
justifiable suspicion do not justify the reversal of a judgment, for it
is the exclusive province of the trial judge or jury to determine the
credibility of a witness and the truth or falsity of the facts upon
which a determination depends. [Citation.] We resolve neither
credibility issues nor evidentiary conflicts; we look for substantial
evidence.” (People v. Maury (2003) 30 Cal.4th 342, 403.)

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“‘To corroborate the testimony of an accomplice, the prosecution
must produce independent evidence which, without aid or
assistance from the testimony of the accomplice, tends to connect
the defendant with the crime charged. [Citation omitted.] “The
evidence need not corroborate the accomplice as to every fact to
which he testifies but is sufficient if it does not require
interpretation and direction from the testimony of the accomplice
yet tends to connect the defendant with the commission of the
offense in such a way as reasonably may satisfy a jury that the
accomplice is telling the truth; it must tend to implicate the
defendant and therefore must relate to some act or fact which is an
element of the crime but it is not necessary that the corroborative
evidence be sufficient in itself to establish every element of the
offense charged.” [Citations omitted.] . . . “[T]he corroborative
evidence may be slight and entitled to little consideration when
standing alone.” [Citations omitted.]’” (People v. Bunyard (1988)
45 Cal.3d 1189, 1206 (Bunyard.) “The trier of fact’s
determination on the issue of corroboration is binding on the
reviewing court unless the corroborating evidence should not have
been admitted or does not reasonably tend to connect the defendant
with the commission of the crime.” (People v. McDermott (2002)
28 Cal.4th 946, 986.)10

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Mitchell incorrectly argues that the trial court applied the wrong standard in denying
his motion for acquittal because it stated that it must assess the sufficiency of the evidence
assuming the jury finds Gipson’s testimony credible. That is the correct standard, and is the
same that this court applies on appeal. With respect to the evidence of corroboration, the trial
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a. Trinidad Robbery

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The primary evidence corroborating Gipson’s account of the
Trinidad robbery, and specifically Mitchell’s involvement in it,
consisted of the evidence that Mitchell was in possession of
Trinidad’s cell phone just a few hours after the robbery and was
anxious to sell it to Gaaologos on the street at 1:30 a.m. for $10.

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“It is established that ‘[t]he possession of recently stolen property
is sufficient to support corroboration for an accomplice’s
testimony.’” (People v. Narvaez (2002) 104 Cal.App.4th 1295,
1304 (Narvaez).) Mitchell nonetheless contends that, in this case,
the evidence of his possession of Trinidad’s cell phone did not
constitute legally sufficient corroboration of Gipson’s accomplice
testimony, for two reasons:
First, Mitchell contends that evidence he possessed Trinidad’s cell
phone did not corroborate Gipson’s testimony because she testified
that no cell phone was taken from Trinidad. He reasons that rather
than corroborate Gipson, the evidence that he possessed Trinidad’s
cell phone actually contradicted it. The conflict, however, was not
irreconcilable, and in any event was for the jury to resolve.
Trinidad testified that his assailants did remove his cell phone from
his pocket. Although Gipson maintained that no cell phone was
taken from Trinidad, she testified that, after Diamond hit Trinidad,
Mitchell and Walton came out of a nearby apartment, “patt[ed]
[Trinidad’s] pockets,” and then ran back into the apartment. The
jury could have resolved the conflict between Trinidad’s account
and Gipson’s assertion that no cell phone was taken by drawing
the reasonable inference that Gipson simply did not see what
Mitchell took from Trinidad’s pockets, because she remained in
the car, whereas Mitchell returned to the apartment. Assuming, as
we must when reviewing the sufficiency of the evidence to support
of the judgment, that the jury did draw such an inference, then
Trinidad’s testimony that his cell phone was taken, together with
Mitchell’s possession of Trinidad’s cell phone and the
circumstances of his attempt to sell it, was sufficient to corroborate
Gipson’s testimony that Mitchell participated in the Trinidad
robbery. (See People v. Espinoza (1979) 99 Cal.App.3d 44, 49
[victim’s testimony corroborated accomplice testimony that
defendant used a gun despite discrepancy between victim and
accomplice regarding the caliber of the gun].)

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Second, Mitchell argues that evidence of his possession of the cell
phone was insufficient to corroborate Gipson’s accomplice
testimony because possession of recently stolen property itself

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court must also allow the jury to resolve conflict and credibility issues as long as the proffered
evidence is admissible and reasonably tends to connect the defendant with the commission of the
crime. (People v. McDermott, supra, 28 Cal.4th at p. 986.)
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requires some corroboration, however slight, to support an
inference that the person in possession is guilty of a theft-related
offense. In Narvaez, supra, 104 Cal.App.4th 1295, the court
rejected the identical contention. It explained that “the reason for
the rule requiring corroboration before evidence of possession of
stolen property can raise an inference that the possessor is guilty of
theft, is markedly different from the reason corroboration is
required for accomplice testimony. In the former instance,
corroboration is required because evidence of possession of stolen
property raises a strong inference of guilt” (id. at p. 1304), and the
jury is cautioned that because this is circumstantial evidence, it
should have some additional basis for drawing an inference of
guilt. “Accomplice testimony, on the other hand, must be
corroborated because it is inherently suspect,” as coming from a
“tainted source” in light of the accomplice’s interest in shifting
blame to others or gaining immunity. (Ibid.) The court concluded
that, for the purpose of corroborating accomplice testimony,
evidence of possession of recently stolen property is sufficient
because it “is direct physical evidence that does not rely on witness
credibility. Thus, there is no taint of improper motive.” (Ibid.)

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Mitchell attempts to distinguish Narvaez, supra, 104 Cal.App.4th
1295, by repeating his argument that here evidence of possession
of Trinidad’s cell phone did not tend to establish Gipson’s
credibility because she testified no cell phone was taken in that
robbery. Yet, as we have explained, the jury could have concluded
she was mistaken on that one point based upon Trinidad’s
testimony that his cell phone was in fact taken, without
discrediting the remainder of her account of the Trinidad robbery.
Mitchell also argues that the conclusion in Narvaez, supra, 104
Cal.App.4th 1295, that evidence the defendant possessed stolen
property is sufficient corroboration, has been “refuted by a higher
authority,” citing People v. Najera (2008) 43 Cal.4th 1132
(Najera). Yet, the court in Najera did not even address the
question whether evidence the defendant possessed stolen property
was sufficient to corroborate accomplice testimony that the
defendant committed the theft-related offense. Instead, the court
addressed the very different question whether a trial court has a
sua sponte duty to instruct the jury that possession of recently
stolen property is insufficient by itself to convict the defendant of a
charged theft-related offense. The Supreme Court rejected the
defendant’s attempt to draw an analogy to cases imposing a sua
sponte duty to instruct on the need for corroboration of accomplice
testimony. The court explained, “[A]ccomplice testimony requires
corroboration not because such evidence is factually insufficient to
permit a reasonable trier of fact to find the accused guilty . . . but
because ‘[t]he Legislature has determined that because of the
reliability questions posed by certain categories of evidence,
evidence in those categories by itself is insufficient as a matter of
law to support a conviction.’” (Id. at pp. 1136-1137.) The court
13

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has a sua sponte duty to give instruction on corroboration of
accomplice testimony because it informs the jury of an exception,
created by the Legislature for extrinsic policy reasons, to the more
general rule that testimony of a single witness, whose testimony is
believed, is sufficient to prove any fact. Without such instruction,
a jury might convict “without finding the corroboration that Penal
Code section 1111 requires.” (Id. at p. 1137.)
The Najera court reasoned that by contrast, “[a]lthough possession
of recently stolen property, if uncorroborated, is likewise
insufficient to establish the accused’s guilt of a theft-related
offense, the insufficiency does not derive from an extrinsic legal
rule, but, rather, is apparent from the general rule governing the
jury’s consideration of circumstantial evidence.” (Najera, supra,
43 Cal.4th at p. 1138.) In other words, although the fact of
possession of recently stolen property is circumstantial evidence
that the defendant committed the theft, it alone does not foreclose
other innocent explanations for the circumstance of possession,
such as the possibility that the perpetrator of the theft “‘”artfully
placed the article in the possession or on the premises of an
innocent person, the better to conceal his own guilt; or it may have
been thrown away by the felon in his flight and found by the
possessor, or have been taken from him in order to restore it to the
true owner.”’” (Ibid.) The court concluded the trial court did not
have a sua sponte duty to give an instruction that circumstance of
possession of stolen property alone does not establish guilt because
the instruction was merely a specific version of more general
instructions on weighing circumstantial evidence. (Id. at pp.
1138-1141.) Nothing in this analysis undermines the conclusion in
Narvaez, supra, 104 Cal.App.4th 1295, that evidence of possession
of recently stolen property is sufficient corroboration of
accomplice testimony that the defendant committed a theft-related
offense because it is direct physical evidence, independent of the
tainted accomplice source tending to link the defendant to the
offense.
No doubt possession of stolen property, in this case Trinidad’s cell
phone, is only circumstantial evidence that Mitchell committed the
Trinidad robbery, but corroboration of accomplice testimony may
be “‘established entirely by circumstantial evidence.’” (People v.
Rodrigues (1994) 8 Cal.4th 1060, 1128.) The question whether the
circumstance that defendant possessed Trinidad’s phone supported
the inference that he committed the robbery was for the jury to
decide. For the purpose of permitting an inference of guilt of a
theft-related offense from the possession of stolen property,
corroborating circumstances may include the attributes of
possession, including time, place, or manner and his or her sale of
the stolen property at a discount price shortly after the theft-related
offense occurred. (See People v. Hernandez (1995) 34
Cal.App.4th 73, 80-81; People v. Russo (1959) 168 Cal.App.2d
747, 750 [stolen property sold in the middle of the night for a price
14

1

that suggested “‘hot’ merchandise”].) The jury clearly rejected the
defense argument that Mitchell might have innocently acquired the
phone from the Puerto Rican man who first answered when
Gaaolegos called her stepfather’s phone. The jury was free instead
to draw the inference that he participated in the robbery itself
based upon other factors, including the fact that he possessed the
phone so soon after the robbery and was anxious to sell it on the
street in the very early hours of the morning for a very low price.11
Therefore, the evidence that Mitchell possessed Trinidad’s cell
phone within a few hours of the robbery, and then tried to sell it at
a low price, was sufficient corroboration of Gipson’s testimony to
allow the jury, if it determined her testimony to be credible, to rely
upon it in finding Mitchell guilty of the Trinidad robbery.

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4
5
6
7
8

In a related vein, Mitchell argues that the many discrepancies
between Gipson’s testimony and Trinidad’s account of the
robbery, internal inconsistencies, and the numerous factors
undermining her credibility, including the fact that she was high on
crack cocaine when she gave the initial statement to Detective
Pucci, was subjected to harsh interrogation, and had a strong
self-interest in obtaining the benefits of her plea, renders it
impossible to assign credibility to any portion of her testimony.
Without belaboring the details of each point, we agree that there
were many compelling reasons to discredit Gipson, but none of
them rendered her testimony inherently incredible. Mitchell had a
full and fair opportunity to present all of these reasons in
arguments to the jury, and the question of her credibility was
ultimately one for the jury, which it resolved against Mitchell. As
the reviewing court, having found there was sufficient evidence to
support the jury’s finding of corroboration of Gipson’s accomplice
testimony, we must defer to the jury’s determination that her
testimony was also credible. (See, e.g., People v. Medina (1961)
198 Cal.App.2d 224, 229-230 [when jury was fully apprised of
reasons to discredit witness, including inducements in form of
leniency, but found witness credible, Court of Appeal will not
redetermine credibility].)

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b. Bedolla Robbery
20
The slightly more difficult question is whether there was sufficient
corroboration of Gipson’s testimony that Mitchell also participated
in the robbery of Bedolla. As we have explained, the evidence of
possession of Trinidad’s cell phone was physical evidence

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23
11

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Mitchell’s defense counsel argued that the jury should conclude he innocently
acquired the phone because it would have been stupid for Mitchell to try to sell the phone so
soon after it was stolen, and to a member of the victim’s family. Yet, the jury could reasonably
conclude instead that Mitchell used poor judgment either because drug use interfered with
rational thought, or the need for money for more drugs overrode the otherwise rational thought
that selling the phone under such circumstances risked getting caught for the robbery.
15

1

independent of the tainted source of uncorroborated accomplice
testimony that tended to link Mitchell to the Trinidad robbery.
There is also no question that, with respect to the Bedolla robbery,
Tamika Darnes’s statement that Walton told her “they”12 were
driving down the street when he saw Joy on the sidewalk fighting
with a Mexican, that he jumped out of the car, hit the Mexican and
knocked him out,13 coupled with the evidence that Bedolla’s wallet
was found discarded nearby, constituted sufficient independent
corroboration of Gipson’s testimony concerning the Bedolla
robbery, at least with respect to Walton. (See, e.g., People v. Ray
(1962) 210 Cal.App.2d 697, 700 [defendant’s own admissions are
sufficient corroboration].) There was not, however, any additional
physical evidence, or an admission that directly linked Mitchell to
the Bedolla robbery. Mitchell correctly points out that the
Attorney General’s reliance upon evidence that Bedolla suffered
severe head injuries, which was consistent with Gipson’s statement
that Walton stomped on Bedolla’s head, is misplaced, because
although that evidence corroborates Gipson’s testimony regarding
a circumstance of the Bedolla robbery, it does not tend to link
Mitchell with its commission. (See People v. Martinez (1982) 132
Cal.App.3d 119, 132-133 [testimony regarding circumstances of
commission of offense is insufficient corroboration].) The
question, then, is whether there is any other evidence, direct or
circumstantial, independent of Gipson’s testimony regarding the
Bedolla robbery, that tended to link Mitchell with commission of
the second robbery.

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7
8
9
10
11
12
13
14

Where accomplice testimony relates to multiple crimes, evidence
of similarity of method, or evidence that the crimes were
committed pursuant to a common plan or scheme, is circumstantial
evidence that may constitute corroborative evidence linking
defendant to the offenses. (See, e.g., People v. Robinson (1960)
184 Cal.App.2d 69, 77-78 [“The similarity of the commission of
crimes is another circumstance of a corroborative nature”]; People
v. Blackwell (1967) 257 Cal.App.2d 313, 320-321 [“similarity in
the commission of crimes in a given locality is itself a
circumstance tending to corroborate the testimony of an
accomplice”].) Even without the aid of Gipson’s testimony, there

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21

12

22

13

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24
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Darnes does not specify who “they” were.

At trial, Darnes insisted that the conversation in which Walton made this admission to
her occurred before April 17 when she was stabbed, in which case Walton’s admission could not
have related to the Bedolla robbery, which occurred on April 29. The jury could have
discredited this portion of her testimony because she also testified that she had a rocky romantic
relationship with Walton, and there was evidence that she was angry at him at the time she made
the statement to Pucci, yet at trial she acknowledged she was a reluctant witness under subpoena,
and had apparently reconciled with Walton. It was therefore a reasonable inference that her trial
testimony regarding the date Walton made the admission was made in an effort to protect him.

26
16

1

was evidence that the two robberies were both committed in the
same area within a few hours of each other. In each case a lone
Hispanic man was targeted in or near an alley, hit in the head,
knocked unconscious, and had his wallet and cell phone stolen. At
a minimum the similarities between the two robberies and their
proximity in time and locale were sufficient to suggest that these
were not unrelated spontaneous acts, but rather were committed
pursuant to a common plan or scheme. (See People v.. Ewoldt
(1994) 7 Cal.4th 380, 402 (Ewoldt).) Mitchell also was found in
possession of Trinidad’s cell phone, which strongly linked him to
the first robbery. It was inferable, from the circumstance that the
second robbery was committed pursuant to the same common plan
or scheme, that Mitchell also participated in the second. No doubt
this circumstantial evidence might not, standing alone, support his
conviction of the Bedolla robbery, but it tended to link him to the
Bedolla robbery without aid or interpretation of Gipson’s
testimony, and therefore was sufficient to corroborate her
testimony that he planned and participated in the Bedolla robbery,
as well as the Trinidad robbery.14

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4
5
6
7
8
9
10
11
12

Opinion at 7-16.
Although California law requires that accomplice testimony be independently

13

corroborated, in federal court “a conviction may be based on the uncorroborated testimony of an

14

accomplice.” United States v. Turner, 528 F.2d 143, 161 (9th Cir. 1975). See also Caminetti v.

15

United States, 242 U.S. 470, 495 (1917) (“there is no absolute rule of law preventing convictions

16

on the testimony of accomplices if juries believe them.”). California Penal Code § 1111, which

17

requires corroboration of accomplice testimony, is a “state law requirement” which is “not

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14

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The foregoing evidence by itself would be sufficient to permit the jury to find
Gipson’s testimony regarding Mitchell’s participation in the Bedolla robbery was corroborated.
It is also worth noting, however, that although normally “[a]n accomplice cannot . . . corroborate
his [or her] own testimony,” the reason for that rule is that the purported corroboration still
comes form a tainted source, i.e., an uncorroborated accomplice. (See People v. Bowley (1963)
59 Cal.2d 855, 859.) Here, however, Gipson’s testimony as to Mitchell’s participation in the
Trinidad robbery was corroborated by the evidence of his possession of the cell phone. In these
circumstances, it would not do violence to the rule requiring corroboration of accomplice
testimony to rely on her corroborated testimony concerning the Trinidad robbery as a source of
additional circumstantial evidence that linked Mitchell to the commission of the Bedolla
robbery. Her testimony that shortly after the Trinidad robbery the same group formed a plan to
commit a second robbery also linked Mitchell to the Bedolla robbery because it tended to show
defendant acted in accordance with that plan. (See Bunyard, supra, 45 Cal.3d at pp. 1206-1207
[in murder trial, evidence of prior act attempting to solicit murder of victim corroborated
accomplice testimony that defendant hired him to kill the victim, because it was probative of
intent, and plan or scheme to kill the victim].)
17

1

required by the Constitution or federal law.” Laboa v. Calderon, 224 F.3d 972, 979 (9th Cir.

2

2000). See also Harrington v. Nix, 983 F.2d 872, 874 (8th Cir.1993) (“[S]tate laws requiring

3

corroboration do not implicate constitutional concerns that can be addressed on habeas review.”).

4

Therefore, petitioner’s claim that uncorroborated accomplice testimony was improperly used to

5

support his conviction is not cognizable in this federal habeas corpus proceeding.

6

Petitioner is only entitled to habeas corpus relief if the state court’s alleged violation of

7

state law denied him his due process right to fundamental fairness. Laboa, 224 F.3d at 979. “A

8

State violates a criminal defendant’s due process right to fundamental fairness if it arbitrarily

9

deprives the defendant of a state law entitlement.” Id. (citing Hicks v. Oklahoma, 447 U.S. 343,

10

346 (1980). Here, the California Court of Appeal carefully reviewed the corroborating evidence

11

and found it linked petitioner to both robberies, in compliance with Cal. Penal Code § 1111.

12

There are no grounds upon which this court could conclude that petitioner was arbitrarily denied

13

a state law entitlement.

14

To the extent petitioner is arguing the evidence, as a whole, was insufficient to support

15

his conviction on the robbery charges, he is not entitled to relief. There is sufficient evidence to

16

support a conviction if, “after viewing the evidence in the light most favorable to the

17

prosecution, any rational trier of fact could have found the essential elements of the crime

18

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). “[T]he dispositive

19

question under Jackson is ‘whether the record evidence could reasonably support a finding of

20

guilt beyond a reasonable doubt.’” Chein v. Shumsky, 373 F.3d 978, 982 (9th Cir. 2004)

21

(quoting Jackson, 443 U.S. at 318). A petitioner in a federal habeas corpus proceeding “faces a

22

heavy burden when challenging the sufficiency of the evidence used to obtain a state conviction

23

on federal due process grounds.” Juan H. v. Allen, 408 F.3d 1262, 1274, 1275 & n.13 (9th Cir.

24

2005). In order to grant the writ, the habeas court must find that the decision of the state court

25

reflected an objectively unreasonable application of Jackson and Winship to the facts of the case.

26

Id.
18

1

Viewing the evidence in the light most favorable to the verdict, there was sufficient

2

evidence introduced at petitioner’s trial to support the jury finding that petitioner committed both

3

robberies. Under federal law, uncorroborated accomplice testimony may support a conviction

4

unless it is “incredible or insubstantial on its face.” United States v. Necoechea, 986 F.2d 1273,

5

1282 (9th Cir. 1993). As explained by the California Court of Appeal, Gipson’s testimony,

6

although problematic in some respects, was not incredible or insubstantial on its face. Her

7

testimony, along with the other evidence of petitioner’s guilt of both robberies and the inferences

8

flowing therefrom, as described by the state appellate court, was sufficient to support the jury

9

verdicts in this case. The conclusion of the state court that sufficient evidence supported

10

petitioner’s convictions is not contrary or an unreasonable application of United States Supreme

11

Court authority. Accordingly, petitioner is not entitled to relief on his first two grounds for

12

relief.

13

2. Severance
In his third ground for relief, petitioner raises the following claims:

14

19

Because the identity of Mr. Mitchell as a perpetrator in the two
robberies was an issue, did the court err in holding that “gross
unfairness” did not result by joining the robbery counts and in
finding support for the joinder based on: a “common scheme or
plan” from shared similarities, the accomplice testimony supported
an inference that Mr. Mitchell had “motive and intent” to commit
the robberies to obtain cash for drugs, & that there was no
spillover effect from the joinder? Was trial counsel ineffective for
failing to move to sever the two counts?

20

Pet. at 8. On direct appeal, petitioner claimed that the trial court violated his right to due process

21

when if failed, sua sponte, to sever the robbery counts against him. He also argued that if this

22

claim was forfeited on appeal by trial counsel’s failure to move for severance, his counsel

23

rendered ineffective assistance. Answer, Ex. C at 40. This court will construe petitioner’s

24

arguments in the instant petition as raising the same claims.

25

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1

The California Court of Appeal concluded that petitioner waived his claim that the trial

2

court violated his right to due process in failing, sua sponte, to sever the two robbery counts.

3

However, the court concluded that counsel did not render ineffective assistance in failing to

4

request severance because a severance motion would not have prevailed. The court reasoned as

5

follows:

6

Mitchell does not dispute that it was proper to join both counts of
robbery against him. He nonetheless contends that the joinder in a
single trial of both counts of robbery resulted in “gross unfairness”
amounting to a denial of state and federal due process. (See
People v. Mendoza (2000) 24 Cal.4th 130, 162.) He argues that
the joint trial of these two counts resulted in prejudice to him
because the evidence of the Trinidad robbery would not have been
cross-admissible in a separate trial of the Bedolla robbery, and the
joinder of two weak cases, coupled with the more egregious
injuries in the Bedolla robbery, resulted in convictions based upon
a “spillover effect,” and inflamed emotions, rather than deliberate
consideration of the separate evidence in support of each count.

7
8
9
10
11
12

Mitchell, however, never moved to sever the two counts.15 It is
well established that a “defendant’s failure to request a severance
waives the matter on appeal,” and the trial court has no sua sponte
duty to sever. (People v. Hawkins (1995) 10 Cal.4th 920, 940
(Hawkins), disapproved on other grounds by People v. Lasko
(2000) 23 Cal.4th 101, 110; see also People v. Maury, supra, 30
Cal.4th at pp. 392-393; People v. Ramirez (2006) 39 Cal.4th 398,
438-439.)

13
14
15
16

Mitchell nevertheless contends that the failure to make a motion
for severance deprived him of his Sixth Amendment right to
effective assistance of counsel. “To establish ineffective
assistance, defendant bears the burden of showing, first, that
counsel’s performance was deficient, falling below an objective
standard of reasonableness under prevailing professional norms.
Second, a defendant must establish that, absent counsel’s error, it
is reasonably probable that the verdict would have been more
favorable to him.” (Hawkins, supra, 10 Cal.4th at p. 940, see also
Strickland v. Washington (1984) 466 U.S. 668, 687-694; People v.
Ledesma (1987) 43 Cal.3d 171, 216-218.)

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Mitchell did file a motion to sever his trial from Walton’s and Gipson’s, on
Aranda-Bruton grounds (People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United States (1968)
391 U.S. 123), before Gipson negotiated a plea. He did not, however, challenge the joinder of
the two robbery counts against him, nor did he move for separate trials of these counts.
20

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Trial counsel’s performance is not deficient for failing to make a
motion that is not meritorious or likely would be denied. (See
People v. Jones (1979) 96 Cal.App.3d 820, 826-827.) Moreover,
if “the trial court would not have abused its discretion by refusing
to grant a motion to sever had such a motion been made,” we
cannot conclude “there was a reasonable probability that a motion
for severance would have been granted. Ipso facto, we cannot
conclude there was a reasonable probability that counsel’s request
for severance would have resulted in a verdict more favorable to
defendant.” (Hawkins, supra, 10 Cal.4th at p. 941, fn. omitted .)

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“A ruling on a motion to sever is based on a weighing of the
probative value of any cross-admissible evidence against the
prejudicial effect of evidence the jury would not otherwise hear,
but in the weighing process the beneficial results of joinder are
added to the probative value side.” (People v. Bean (1988) 46
Cal.3d 919, 936.) Although the determination depends on the facts
of each case, factors that may support a finding of prejudice
include: “(1) evidence on the crimes to be jointly tried would not
be cross-admissible in separate trials; (2) certain of the charges are
unusually likely to inflame the jury against the defendant; (3) a
‘weak’ case has been joined with a ‘strong’ case, or with another
‘weak’ case, so that the ‘spillover’ effect of aggregate evidence on
several charges might well alter the outcome of some or all of the
charges; and (4) any one of the charges carries the death penalty or
joinder of them turns the matter into a capital case.” (People v..
Sandoval (1992) 4 Cal.4th 155, 172-173.)
Ordinarily, cross-admissibility of evidence dispels any inference of
prejudice. (People v. Arias (1996) 13 Cal.4th 92, 126.) The two
robberies were both committed in the same area within a few hours
of each other. In each case a lone Hispanic man was targeted and
accosted by a woman in or near an alley, hit in the head, knocked
unconscious, and had his wallet and cell phone stolen. We need
not resolve the question whether the two robberies shared
sufficient distinctive common marks to be cross-admissible on the
issue of identity because, at a minimum, the similarities between
the methods and participants in the two robberies and their
proximity in time and locale were sufficient to suggest that they
were committed pursuant to a common plan or scheme. (Ewoldt,
supra, 7 Cal.4th at p. 402; People v. Prince (2007) 40 Cal.4th
1179, 1271.) The evidence of the two robberies was also
cross-admissible to prove motive and intent. (Evid.Code, § 1101,
subd. (b).) Gipson testified that on the night of the robberies, she,
Mitchell, Walton, Joy and Diamond were smoking crack together
and that after the Trinidad robbery they planned to rob another
person. This testimony supported an inference that Mitchell had a
motive to commit both robberies, i.e., to obtain cash or property he
could sell for drugs, and was also relevant to show the intent to
steal underlying the physical attack on Trinidad and Bedolla. (See
Bunyard, supra, 45 Cal.3d at pp. 1206-1207 [in murder trial,
21

1
2

evidence of prior act attempting to solicit murder of victim
corroborated accomplice testimony that defendant hired him to kill
the victim because it was probative of intent, and plan or scheme to
kill the victim].)

3
4
5
6
7
8
9
10
11
12
13

Moreover, even if the evidence in support of the two robberies was
not cross-admissible, the evidence in the two robberies was not so
weak or inflammatory that a joint trial would, or actually did,
result in conviction based upon a “spillover effect” and inflamed
emotions rather than consideration of the separate evidence in
support of each count. Although the primary evidence in both
cases was the testimony of Gipson, an accomplice, her testimony
was corroborated by the evidence we have already summarized.
Although Bedolla did suffer more severe injuries, both victims
were hit in the head and knocked unconscious, and the level of
violence in the Bedolla case is not so extraordinary that it would be
unusually likely to inflame the jury. (Cf. Coleman v. Superior
Court (1981) 116 Cal.App.3d 129, 138-139 [holding it was an
abuse of discretion not to sever highly inflammatory counts of sex
offense committed against children from count of murder of an
adult].)
For all the forgoing reasons, we conclude that a motion to sever
would likely not have been granted, and therefore counsel’s failure
to make the motion was not incompetent, nor did the failure to
make a motion to sever result in any prejudice to Mitchell.

14
15
16

Opinion at 16-19.
Respondent argues that the decision of the California Court of Appeal that petitioner

17

waived his severance claim constitutes a procedural bar which precludes this court from

18

addressing the merits of that claim in the instant petition. Answer at 13-14. He also argues that

19

petitioner has failed to demonstrate cause for his default because his trial counsel did not render

20

ineffective assistance in failing to move for severance.

21

The United States Supreme Court has held that, when a state law default prevents the

22

state court from reaching the merits of a federal claim, considerations of comity and concerns for

23

the orderly administration of justice require a federal court to forego the exercise of its habeas

24

corpus power unless the habeas petitioner can demonstrate both cause for failing to meet the

25

state procedural requirement and actual prejudice. See Francis v. Henderson, 425 U.S. 536, 539-

26

42 (1976); Wainwright v. Sikes, 433 U.S. 72, 87 (1977); Ylst v. Nunnemaker, 501 U.S. 797, 80022

1

01 (1991). However, a reviewing court need not invariably resolve the question of procedural

2

default prior to ruling on the merits of a claim. Lambrix v. Singletary, 520 U.S. 518, 524-25

3

(1997); see also Busby v. Dretke, 359 F.3d 708, 720 (5th Cir. 2004). Under the circumstances

4

presented here, this court finds that petitioner’s claims can be resolved more easily by addressing

5

them on the merits. Accordingly, this court will assume that petitioner’s claims are not defaulted

6

and will address them on the merits.

7

Petitioner first claims that joinder of the two counts of robbery in one trial rendered the

8

proceedings fundamentally unfair, in violation of his right to due process. As the Supreme Court

9

has explained, “[i]mproper joinder does not, in itself, violate the Constitution.” United States v.

10

Lane, 474 U.S. 438, 446 n.8 (1986). Rather, habeas relief on a claim of improper joinder is

11

appropriate only where the “simultaneous trial of more than one offense . . . actually render[ed]

12

petitioner’s state trial fundamentally unfair and hence, violative of due process.” Sandoval v.

13

Calderon, 241 F.3d 765, 771-72 (9th Cir. 2000) (quoting Featherstone v. Estelle, 948 F.2d 1497,

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1503 (9th Cir. 1991)). See also Lane, 474 U.S. at 446, n.8 (“misjoinder would rise to the level of

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a constitutional violation only if it results in prejudice so great as to deny a defendant his Fifth

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Amendment right to a fair trial”); Davis v. Woodford, 384 F.3d 628, 638-39 (9th Cir. 2004); Park

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v. California, 202 F.3d 1146, 1149 (9th Cir. 2000). “[I]t is well settled that defendants are not

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entitled to severance merely because they may have a better chance of acquittal in separate

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trials.” Collins v. Runnels, 603 F.3d 1127, 1132 (9th Cir. 2010).

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Petitioner has failed to demonstrate that joinder of the two robbery counts against him

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rendered his trial fundamentally unfair. As explained by the California Court of Appeal, the

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evidence with regard to both robberies was cross-admissible to prove motive and intent and was

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sufficient to suggest that both robberies were committed pursuant to a common plan or scheme,

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neither of the robbery charges was unusually likely to inflame the jury against petitioner, and

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neither case was particularly “weak” or “strong.” (Opinion at 18-19.) Further, any possible

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prejudice was limited through appropriate jury instructions. See Lane, 474 U.S. at 450 n.13
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(concluding, in a case regarding misjoinder of defendants, that a “carefully crafted limiting

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instruction” may reduce prejudice “to the minimum” and that”[w]e cannot necessarily assume

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that the jury misunderstood or disobeyed such instructions” (internal citations and quotation

4

marks omitted)). Petitioner’s jury was instructed that they should consider each count separately

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(Reporter’s Transcript on Appeal, at 378); that they “may not convict a defendant of any crime

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unless [they] are convinced that each fact essential to the conclusion that the defendant is guilty

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of that crime has been proven beyond a reasonable doubt” (id. at 389); that “each of the counts

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charged in this case is a separate crime” (id. at 393); and that “you must consider each count

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separately and return a separate verdict for each one.” Id. Under these circumstances, the trial

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court did not violate petitioner’s right to due process in failing to sever the charges against him

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lacks merit and that claim for habeas relief is denied.

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This court also agrees with the conclusion of the California Court of Appeal that

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petitioner’s trial counsel did not render ineffective assistance in failing to move for severance.

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To support a claim of ineffective assistance of counsel, a petitioner must first show that,

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considering all the circumstances, counsel’s performance fell below an objective standard of

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reasonableness. See Strickland, 466 U.S. at 687-88. Second, a petitioner must establish that he

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was prejudiced by counsel’s deficient performance. Id. at 693-94. Prejudice is found where

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“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

19

proceeding would have been different.” Id. at 694. An attorney’s failure to make a meritless

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objection or motion does not constitute ineffective assistance of counsel. Jones v. Smith, 231

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F.3d 1227, 1239 n.8 (9th Cir. 2000) (citing Boag v. Raines, 769 F.2d 1341, 1344 (9th Cir.

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1985)). See also Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) (“the failure to take a futile

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action can never be deficient performance”). “To show prejudice under Strickland resulting

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from the failure to file a motion, a defendant must show that (1) had his counsel filed the motion,

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it is reasonable that the trial court would have granted it as meritorious, and (2) had the motion

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been granted, it is reasonable that there would have been an outcome more favorable to him.”
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1

Wilson v. Henry, 185 F.3d 986, 990 (9th Cir. 1999) (citing Kimmelman, 477 U.S. at 373-74).

2

The California Court of Appeal concluded that there was no basis for a successful

3

severance motion under state law. This conclusion is reasonable under the circumstances of this

4

case and, as a ruling based on state law, is not subject to challenge in this federal habeas corpus

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petition. See Estelle, 502 U.S. at 67-68; Park, 202 F.3d at 1149. Since a motion to sever the

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robbery counts would not have been successful, trial counsel was not ineffective in failing to

7

raise such a motion. Accordingly, petitioner is not entitled to relief on his claim of ineffective

8

assistance of counsel.

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III. Conclusion

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For all of the foregoing reasons, IT IS HEREBY ORDERED that:

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1. Petitioner’s application for a writ of habeas corpus is denied.

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2. The Clerk is directed to close the case.

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3. The court declines to issue a certificate of appealability.

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DATED: December 8, 2011.

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