Nelson v. Haviland

Filing 20

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 7/22/11 RECOMMENDING that 1 Petition for Writ of Habeas Corpus filed by Dennis Louis Nelson. Referred to Judge William B. Shubb; Objections to F&R due within 21 days.(Dillon, 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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DENNIS LOUIS NELSON,

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Petitioner,

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vs.
GARY SWARTHOUT,

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Respondent.

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No. 2:09-cv-2793 WBS KJN P

FINDINGS AND RECOMMENDATIONS
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I. Introduction

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Petitioner is a state prisoner, proceeding without counsel, with an application for a

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writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2004 conviction

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for first degree murder. Petitioner was sentenced to life in prison, with the possibility of parole.

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Petitioner raises four claims in his petition, filed October 7, 2009, that his prison sentence

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violates the Constitution. For the reasons set forth below, the undersigned recommends that the

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petition be denied.

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II. Procedural History

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On June 18, 2004, a jury found petitioner guilty of first degree murder.

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Petitioner was sentenced to a term of life with the possibility of parole.

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Petitioner filed a timely appeal and on August 31, 2006, in a partially published

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opinion, the California Court of Appeal for the Third Appellate District affirmed the judgment.

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People v. Nelson, 142 Cal. App. 4th 696 (Lodged Document “LD” D, App. A).1

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Petitioner filed a timely petition for review in the California Supreme Court. (LD
D.) The court granted review on three questions:

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1) Did the delay in charging defendant violate his state and
federal constitutional rights? (2) Does the methodology for
assessing the statistical significance of a “cold hit” from a DNA
database require proof of general scientific acceptance? (3) How
should the statistical significance of a “cold hit” from a DNA
database be calculated?

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People v. Nelson, 43 Cal. 4th 1242, 1249 (2008). On June 16, 2008, in a published opinion, the

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California Supreme Court affirmed. Id. at 1268 (LD I at 24). On October 6, 2008, the United

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States Supreme Court denied petitioner’s petition for writ of certiorari. Nelson v. California, 129

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S. Ct. 357 (2008).

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Petitioner filed no petitions for writ of habeas corpus in the state courts.
III. Facts2

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In the late afternoon of February 23, 1976, Ollie George, a
19–year–old college student, drove her brother's car to a shopping
center in Sacramento to buy some nylons. Around 5:30 p.m., she
told her mother by telephone that the car would not start. Around
that time, she was seen at a nearby McDonald's restaurant. Later
the car was found unattended at the shopping center, with the door
unlocked and the keys in the ignition. The car contained grocery
items, nylons, Ollie's purse, and a partially eaten McDonald's
hamburger. Ollie was missing. Her family notified the police that
she was missing, and her disappearance was reported in the

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Respondent lodged the state court record herein on March 18, 2010. Because the
Court of Appeal opinion was only partly published, this court refers to the version lodged herein
rather than to the published version. Lodged Document D is petitioner’s Petition for Review by
the California Supreme Court. Appendix A to that document contains the full opinion of the
California Court of Appeal.
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The facts are taken from the opinion of the California Supreme Court. People v.
Nelson, 43 Cal. 4th 1242, 1247-48 (2008) (LD I). These facts are quoted from that court’s
opinion, with the exception of replacing the word “defendant” with the word “petitioner.”
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newspaper and on television. Two people said they had observed
Ollie inside a car at the shopping center around the time she
disappeared. The hood was open, and a man described as
African–American appeared to be working on the engine. One
witness said the man was wearing a “watch cap.”
Two days later, Ollie's body was found in an
unincorporated area of Sacramento County. She had been raped
and drowned in mud.
Within a couple of weeks, one of the witnesses saw what he
believed to be the same car in which he had seen Ollie around the
time she disappeared. He reported the license number to the police.
The car was petitioner’s faded blue Oldsmobile F85. In early
March 1976, sheriff's detectives observed petitioner and his car in
an apartment parking lot. He was wearing a watch cap. He agreed
to go to the sheriff's department for an interview. There, he gave a
rather confused account of his whereabouts at the time Ollie
disappeared. Petitioner’s mother-in-law said that petitioner was at
her house sometime between 4:00 and 6:00 p.m. on the day Ollie
disappeared, but she also said that petitioner never stayed long at
her house.

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During the investigation, detectives received hundreds of
tips, including reports that Ollie, or at least a woman who, like
Ollie, was African–American, was seen with a Caucasian male or
males. Detectives interviewed over 180 potential witnesses and
followed other leads. However, they were unable to develop
sufficient evidence to focus the investigation on a specific person.
Eventually, the matter became a cold case, that is, unsolved but
inactive.
In later years, for unrelated events, petitioner was convicted
of criminal offenses, including rape and forcible oral copulation,
and was sentenced to a lengthy prison term. A biological sample
was obtained from him for DNA analysis and entry into the state
convicted offender databank.
In October 2000, the state allocated funds to enable local
law enforcement agencies to utilize DNA to solve sexual assault
cases that lacked suspects. Sacramento County began hiring and
training analysts, a process that takes about a year. At that time, the
county had about 1,600 unsolved sexual assault cases. In July
2001, a review of Ollie George's death determined that the case had
biological evidence warranting analysis. The case was put in line
for DNA analysis. The evidence included a vaginal swab, semen
stains on Ollie's sweater, and Ollie's hair samples obtained during
the autopsy. An analyst used part of a semen stain from the sweater
to develop a DNA profile. The state Department of Justice
obtained that profile for comparison, by computer, with the state's
convicted offender databank. At the time, the databank contained
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about 184,000 individual profiles. The search resulted in a match
with one of the persons in the databank. Petitioner was that person,
and he was identified as a potential source of the semen stain.
In 2002, with a warrant, detectives obtained oral swabs
from petitioner, which were analyzed with Ollie's vaginal swab, the
semen stains on her sweater, and her hair samples. Petitioner’s
DNA matched the DNA of each of the evidence samples. As a
result, petitioner was charged with Ollie's first degree murder.
Before trial, petitioner moved unsuccessfully to have the matter
dismissed due to the delay in charging him with the murder. . . . At
trial, over objection, the prosecution presented evidence that the
DNA profile on the vaginal swab would occur at random among
unrelated individuals in about one in 950 sextillion
African–Americans, one in 130 septillion Caucasians, and one in
930 sextillion Hispanics. There are 21 zeros in a sextillion and 24
zeros in a septillion. . . .
In view of the DNA evidence, the defense did not deny that
petitioner had sexual intercourse with Ollie. Rather, the defense
claimed that Ollie and petitioner had consensual intercourse on the
weekend before she disappeared, and that someone else abducted,
raped, and murdered her.

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43 Cal. 4th at 1247-49.

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IV. 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

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judgment of a state court can be granted only for violations of the Constitution or laws of the

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United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the

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

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

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Federal habeas corpus relief is not available for any claim decided on the merits in
state court proceedings unless the state court’s 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
(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.
28 U.S.C. § 2254(d).
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Under section 2254(d)(1), a state court decision is “contrary to” clearly

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established United States Supreme Court precedents if it applies a rule that contradicts the

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

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indistinguishable from a decision of the Supreme Court and nevertheless arrives at different

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result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-06

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(2000)).

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Under the “unreasonable application” clause of section 2254(d)(1), a federal

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

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

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prisoner’s case. Williams, 529 U.S. at 413. A federal habeas court “may not issue the writ

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simply because that court concludes in its independent judgment that the relevant state-court

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decision applied clearly established federal law erroneously or incorrectly. Rather, that

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application must also be unreasonable.” Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75

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(2003) (it is “not enough that a federal habeas court, in its independent review of the legal

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question, is left with a ‘firm conviction’ that the state court was ‘erroneous.’”) (internal citations

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omitted). “A state court’s determination that a claim lacks merit precludes federal habeas relief

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

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

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

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court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). If there is no reasoned

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decision, “and the state court has denied relief, it may be presumed that the state court

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

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principles to the contrary.” Harrington, 131 S. Ct. at 784-85. That presumption may be

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overcome by a showing that “there is reason to think some other explanation for the state court’s

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decision is more likely.” Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)).

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

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to support its conclusion, the federal court conducts an independent review of the record.

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“Independent review of the record is not de novo review of the constitutional issue, but rather,

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the only method by which we can determine whether a silent state court decision is objectively

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unreasonable.” Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). Where no reasoned

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decision is available, the habeas petitioner has the burden of “showing there was no reasonable

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basis for the state court to deny relief.” Harrington, 131 S. Ct. at 784. “[A] habeas court must

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determine what arguments or theories supported or, . . . could have supported, the state court’s

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decision; and then it must ask whether it is possible fairminded jurists could disagree that those

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arguments or theories are inconsistent with the holding in a prior decision of this Court.” Id. at

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786.

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V. Petitioner’s Claims

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A. Claim 1 - Alleged Due Process Violation from Delay in Bringing Charges

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Petitioner argues that the 26 ½-year delay in bringing charges prejudiced his

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ability to prepare a defense and deprived him of due process. For the reasons set forth below,

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petitioner has not shown the California Supreme Court’s opinion on this issue was contrary to or

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an unreasonable application of federal law. This court recommends denial of this due process

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claim.

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1. Federal Law

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The United States Supreme Court held in 1971 that a defendant may assert a

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constitutional violation for pre-indictment delay under the Due Process Clause, but not under the

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speedy trial guarantee of the Sixth Amendment. United States v. Marion, 404 U.S. 307 (1971).

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The Court held the defendant had not established a due process violation in that case because,

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“[n]o actual prejudice to the conduct of the defense is alleged or proved, and there is no showing

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that the Government intentionally delayed to gain some tactical advantage over appellees or to

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harass them.” Id. at 325. Several years later, the Court confirmed that “proof of prejudice is
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generally a necessary but not sufficient element of a due process claim, and that the due process

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inquiry must consider the reasons for the delay as well as the prejudice to the accused.” United

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States v. Lovasco, 431 U.S. 783, 790 (1977); see also United States v. Valenzuela-Bernal, 458

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U.S. 858, 868-69 (1982).

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The Court has stressed that the reason for the prosecutor’s delay is important:

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In our view, investigative delay is fundamentally unlike
delay undertaken by the Government solely “to gain tactical
advantage over the accused,” precisely because investigative delay
is not so one-sided. Rather than deviating from elementary
standards of “fair play and decency,” a prosecutor abides by them if
he refuses to seek indictments until he is completely satisfied that
he should prosecute and will be able promptly to establish guilt
beyond a reasonable doubt. Penalizing prosecutors who defer
action for these reasons would subordinate the goal of “orderly
expedition” to that of “mere speed.” This the Due Process Clause
does not require. We therefore hold that to prosecute a defendant
following investigative delay does not deprive him of due process,
even if his defense might have been somewhat prejudiced by the
lapse of time.

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Lovasco, 431 U.S. at 2051-52 (internal citations and footnote omitted). In fact, the Court has

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described this standard for evaluating delay as a particularly difficult one for a petitioner to meet:

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“such claims can prevail only upon a showing that the Government delayed seeking an

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indictment in a deliberate attempt to gain an unfair tactical advantage over the defendant or in

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reckless disregard of its probable prejudicial impact upon the defendant's ability to defend against

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the charges.” United States v. $8,850, 461 U.S. 555, 563 (1983); see also United States v.

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Gouveia, 467 U.S. 180, 192 (1984). However, the Court has also declined to set a clear standard

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for determining when the Due Process Clause is violated for pre-indictment delay:

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In Marion we conceded that we could not determine in the
abstract the circumstances in which preaccusation delay would
require dismissing prosecutions. More than five years later, that
statement remains true. Indeed, in the intervening years so few
defendants have established that they were prejudiced by delay that
neither this Court nor any lower court has had a sustained
opportunity to consider the constitutional significance of various
reasons for delay. We therefore leave to the lower courts, in the
first instance, the task of applying the settled principles of due

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process that we have discussed to the particular circumstances of
individual cases.

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Id. at 2052 (citation and footnote omitted).
The Court of Appeals for the Ninth Circuit has held that a defendant must first

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show “actual, non-speculative prejudice from the delay.” United States v. Corona-Verbera, 509

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F.3d 1105, 1112 (9th Cir. 2007). Showing actual prejudice is a “‘heavy burden’ that is rarely

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met.” Id. (quoting United States v. Huntley, 976 F.2d 1287, 1290 (9th Cir. 1992)). “Generalized

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assertions of the loss of memory, witnesses, or evidence are insufficient to establish actual

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prejudice. Consequently, [a defendant] must show both that lost testimony, witnesses, or

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evidence meaningfully has impaired his ability to defend himself, and [t]he proof must

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demonstrate by definite and non-speculative evidence how the loss of a witness or evidence is

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prejudicial to [his] case.” Id. (internal quotation marks and citations omitted). Once the

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defendant shows actual prejudice, he must next show this prejudice outweighs the reasons for the

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delay and that the delay “offends those ‘fundamental conceptions of justice which lie at the base

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of our civil and political institutions.’” Id. (quoting United States v. Sherlock, 962 F.2d 1349,

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1353-54 (9th Cir. 1989)).

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2. California Supreme Court Opinion

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After reviewing Marion, Lovasco, United States v. $8,850, and Gouveia, the

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California Supreme Court found federal courts had not established a clear standard for

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determining when pre-complaint delay violates federal due process standards. In particular,

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federal law was not entirely clear whether a challenge to a pre-complaint delay must include a

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showing “‘that the delay was undertaken to gain a tactical advantage over the defendant.’” 43

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Cal. 4th at 1251 (quoting People v. Catlin, 26 Cal. 4th 81, 107 (2001)). The Court determined

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that regardless of the exact contours of federal law, it was clear the state law standard was more

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favorable to the defendant than the federal standard. Id. at 1251. Therefore, the Court’s

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determination that the delay in charging petitioner did not violate the state Constitution was
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necessarily a determination that the delay did not violate the federal Constitution either. Id.

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Under the state due process standard, petitioner would prevail if he showed the prejudice he

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suffered from the delay outweighed the prosecution’s justification for the delay. Id. at 1255-56.

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The California Supreme Court first held it would not presume prejudice based on

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the length of the pre-complaint delay. 43 Cal. 4th at 1250. “Presuming prejudice would be

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inconsistent with the Legislature’s declining to impose a statute of limitations for murder, among

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the most serious of crimes. To avoid murder charges due to delay, the defendant must

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affirmatively show prejudice.” Id.

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The California Supreme Court next examined whether petitioner suffered actual

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prejudice as a result of the delay. It noted that the Court of Appeal had “meticulous[ly]”

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considered every basis upon which petitioner claimed prejudice. 43 Cal. 4th at 1250-51. A

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review of the Court of Appeal opinion confirms that conclusion. The Court of Appeal went

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through each of the following allegations of prejudice: (1) unavailability of witnesses; (2) failure

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of witnesses’ memories; (3) loss of photographs; (4) loss of evidence; (5) loss of alibi evidence;

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(6) unavailability of evidence necessary for pretrial motions; (7) lost opportunity for concurrent

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sentencing; and (8) lost opportunity to be charged with a lesser offense. (LD D, App. A, at 14-

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28.) When it found petitioner made an allegation of prejudice that had some potential for being

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material, the court examined that allegation in detail. For example, the court specifically

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examined the potential for prejudice from the unavailability of seven witnesses and discussed a

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number of items of missing evidence. (LD D, App. A, at 15-19, 21-24.) The state high court

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agreed with the Court of Appeal’s conclusion that petitioner “‘demonstrated some prejudice

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sufficient to require the prosecution to justify the preaccusation delay, but the prejudice was

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minimal.’” Id. at 1250 (quoting LD D, App. A, at 13.)

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The California Supreme Court next held the prosecutor’s reasons for the 26 ½-

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year delay were legitimate and justified:

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In this case, the justification for the delay was strong. The
delay was investigative delay, nothing else. The police may have
had some basis to suspect defendant of the crime shortly after it
was committed in 1976. But law enforcement agencies did not
fully solve this case until 2002, when a comparison of defendant's
DNA with the crime scene evidence resulted in a match, i.e., until
the cold hit showed that the evidence came from defendant. Only at
that point did the prosecution believe it had sufficient evidence to
charge defendant. A court should not second-guess the
prosecution's decision regarding whether sufficient evidence exists
to warrant bringing charges. “The due process clause does not
permit courts to abort criminal prosecutions simply because they
disagree with a prosecutor's judgment as to when to seek an
indictment.... Prosecutors are under no duty to file charges as soon
as probable cause exists but before they are satisfied they will be
able to establish the suspect's guilt beyond a reasonable doubt....
Investigative delay is fundamentally unlike delay undertaken by the
government solely to gain tactical advantage over an accused
because investigative delay is not so one-sided. A prosecutor
abides by elementary standards of fair play and decency by refusing
to seek indictments until he or she is completely satisfied the
defendant should be prosecuted and the office of the prosecutor
will be able to promptly establish guilt beyond a reasonable doubt.”
Indeed, as explained in Lovasco, supra, 431 U.S. at pages 792–795,
97 S. Ct. 2044, many legitimate reasons exist why the government
might delay bringing charges even after it has sufficient evidence
to convict.

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Defendant argues that the DNA technology used here
existed years before law enforcement agencies made the
comparison in this case and that, therefore, the comparison could
have, and should have, been made sooner than it actually was.
Thus, he argues, the state's failure to make the comparison until
2002 was negligent. We disagree. A court may not find negligence
by second-guessing how the state allocates its resources or how
law enforcement agencies could have investigated a given case.
“[T]he necessity of allocating prosecutorial resources may cause
delays valid under the Lovasco analysis. [Citation.] Thus, the
difficulty in allocating scarce prosecutorial resources (as opposed
to clearly intentional or negligent conduct) [is] a valid justification
for delay....” It is not enough for a defendant to argue that if the
prosecutorial agencies had made his or her case a higher priority or
had done things a bit differently they would have solved the case
sooner.

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43 Cal. 4th at 1256-57 (some internal citations omitted). The Court finally went on to find the

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prosecution’s justification far outweighed any prejudice to petitioner:

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In this case, balancing the prejudice defendant has
demonstrated against the strong justification for the delay, we find
no due process violation. We agree with the Court of Appeal's
summary: “[T]he delay was not for the purpose of gaining an
advantage over the defendant. [Citation.] Indeed, the record does
not even establish prosecutorial negligence. The delay was the
result of insufficient evidence to identify defendant as a suspect
and the limits of forensic technology. [Citations.] When the
forensic technology became available to identify defendant as a
suspect and to establish his guilt, the prosecution proceeded with
promptness. Without question, the justification for the delay
outweighed defendant's showing of prejudice.”

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Id. at 1257.
3. Analysis
In support of his argument that lengthy pre-accusation delay should be presumed

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prejudicial, petitioner cites only a speedy trial case. However, Doggett v. United States, 505 U.S.

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647 (1992), does not support petitioner’s argument. The Court in Doggett specifically noted that

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“the Sixth Amendment right of the accused to a speedy trial has no application beyond the

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confines of a formal criminal prosecution,” which is not triggered until the defendant is arrested,

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indicted or otherwise officially accused. 505 U.S. at 655. The Court went on to discuss the

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presumption of prejudice applicable in Sixth Amendment speedy trial cases. Id. at 655-56.

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Nothing in Doggett extends that presumption to due process claims such as petitioner’s regarding

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pre-accusation delay. In fact, the United States Supreme Court has stated that a defendant must

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prove prejudice to succeed on a due process claim, such as this one. Valenzuela-Bernal, 458

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U.S. at 869 (due process claim of pre-indictment delay requires showing of actual prejudice).

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Certainly, then, the decision of the California Supreme Court refusing to presume prejudice

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cannot be said to be “contrary to, or involved an unreasonable application of, clearly established

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Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1).

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In his traverse, petitioner argues he suffered substantial actual prejudice when all

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aspects of prejudice are considered cumulatively. (Dkt. No. 17 at 24-28.) He goes on to discuss

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three aspects of prejudice. First, he argues the brain aneurysm he suffered before trial affected
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his ability to remember past events and to work with his trial attorney. Second, he argues that the

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passage of time rendered other DNA samples on the victim’s clothing, which indicated the

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presence of a third person, untestable. Third, he argues that his primary alibi witness, his

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mother-in-law, was unable to recall and confirm her statement, given to the police shortly after

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the crime, that petitioner was at her home between 4:00 and 6:00 p.m. on the day of the crime.

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Petitioner does not establish how each of these problems prejudiced him. He alleges personal

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memory loss from a brain aneurism, but does not specify what aspects of the case he could not

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recall, how his memory loss affected his interactions with counsel, or how either of these

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problems disadvantaged him at trial. With respect to the DNA samples, the Court of Appeal

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noted that an expert testified at trial that the small amount of an allele,3 which belonged to neither

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petitioner nor the victim, that was detected in three of the victim’s sweater stains could have been

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the result of something as innocuous as a sneeze. (LD D, App. A, at 22-23 n.6.) The court

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stated that no foreign alleles were detected in the vaginal swab. (Id.) Petitioner provides no

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reason to believe that a fresher sample would have produced sufficient DNA from a third party to

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have been somehow material at trial. Finally, with respect to the alibi witness, petitioner

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complains that his mother-in-law could not recall that he had been at her home between 4:00 and

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6:00 p.m. on the day of the crime. However, as the Court of Appeal pointed out, his mother-in-

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law’s statement that petitioner was in her home during that time, which was made to detectives

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during the investigation, was admitted into evidence at trial. (LD D, App. A, at 25.)

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Finally, petitioner argues that the stated reason for a substantial part of the delay

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in bringing charges against him reflects a reckless disregard for his rights. (Dkt. No. 17 at 32-

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36.) That reason is essentially that insufficient funding, a backlog of cases, and a policy of

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prioritizing the investigation of DNA matches in newer cases prevented the prosecutor from

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As defined by the California Supreme Court, an “allele” is a repetition of a particular
pattern of chemical, or “base,” pairs found in particular regions, or “loci,” of a persons’s DNA.
43 Cal. 4th at 1258.
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finding the DNA match in this case more quickly. (Id. at 34 n.16.) Petitioner cites no case law

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in support of his argument. The California Supreme Court held that the “difficulty in allocating

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scarce prosecutorial resources . . . is valid justification for delay.” 43 Cal. 4th at 1256-57.

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Petitioner has not shown that the California courts’ findings of fact were

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unreasonable or that the factual and legal conclusions that petitioner did not suffer substantial

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prejudice, that the delay was justified, or that the prejudice did not outweigh the reasons for the

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delay were contrary to or an unreasonable application of clearly established federal law.

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Accordingly, petitioner’s claim 1 should be denied.

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B. Claim 2 - Admissibility of DNA Statistical Evidence

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Petitioner’s second claim is that the trial court erred in admitting testimony about

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the odds that the DNA evidence came from someone besides petitioner because the statistical

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method used to calculate those odds had not achieved general acceptance in the scientific

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community. At trial, these odds were calculated using the “product rule.” Petitioner argues that

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while the product rule is generally acceptable to calculate the relevant odds when a suspect’s

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DNA is compared to crime scene evidence, it has not gained scientific acceptance when

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matching crime scene evidence to DNA in a non-random setting such as the cold hit database

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setting used here.4

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1. Federal Law

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A state court’s evidentiary ruling, even if erroneous, is grounds for federal habeas

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relief only if it renders the state proceedings so fundamentally unfair as to violate due process.

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The California Supreme Court defined the product rule: “Experts use a statistical
method called the ‘product rule’ to calculate the rarity of the sample in the relevant population. . .
As the Court of Appeal summarized it, ‘The frequency with which each measured allele appears
in the relevant population is estimated through the use of population databases.... The frequencies
at each tested locus are multiplied together to generate a probability statistic reflecting the overall
frequency of the complete multilocus profile.... The result reflects the frequency with which the
complete profile is expected to appear in the population.... The result is sometimes expressed as
the probability that the DNA of a person selected at random from the relevant population would
match the evidentiary sample at all tested loci....’” 43 Cal. 4th at 1259.
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Drayden v. White, 232 F.3d 704, 710 (9th Cir. 2000); Spivey v. Rocha, 194 F.3d 971, 977-78

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(9th Cir. 1999); Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991). “[F]ailure to

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comply with the state’s rules of evidence is neither a necessary nor a sufficient basis for granting

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habeas relief.” Jammal, 926 F.2d at 919. “A habeas petitioner bears a heavy burden in showing

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a due process violation based on an evidentiary decision.” Boyde v. Brown, 404 F.3d 1159, 1172

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(9th Cir. 2005).

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2. California Supreme Court’s Opinion

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The California Supreme Court’s opinion first addresses whether it was necessary

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to determine whether the application of the product rule to a cold hit case has “achieved general

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scientific acceptance” under the Kelly standard. 43 Cal. 4th at 1257-65. The Kelly test was

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created by the California Supreme Court to determine the admissibility of expert testimony based

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on a new scientific technique. Id. at 1257-58. The Court concluded that use of the product rule

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in a cold hit case has been found reliable. Id. at 1265. In other words, the mathematical basis for

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it is sound. Id. at 1264. The Court determined that the real issue in this case is whether the

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evidence was relevant. The California Supreme Court concluded it was:

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Relevant evidence is evidence “having any tendency in
reason to prove or disprove any disputed fact that is of
consequence to the determination of the action.” (Evid. Code, §
210.) The test of relevance is whether the evidence tends,
logically, naturally, and by reasonable inference to establish
material facts such as identity, intent, or motive. Under this test,
the product rule generates relevant evidence even in a cold hit case.
It is certainly correct that, as one treatise that discussed this
question put it, “the picture is more complicated when the
defendant has been located through a database search....” (Modern
Scientific Evidence, supra, § 32:11, p. 111.) The Jenkins court
recognized this circumstance. It explained that in a non-cold-hit
case, the number derived from the product rule “represents two
concepts: (1) the frequency with which a particular DNA profile
would be expected to appear in a population of unrelated people, in
other words, how rare is this DNA profile (‘rarity statistic’), and
(2) the probability of finding a match by randomly selecting one
profile from a population of unrelated people, the so-called
‘random match probability.’”

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The court explained that the government had conceded
“that in a cold hit case, the product rule derived number no longer
accurately represents the probability of finding a matching profile
by chance. The fact that many profiles have been searched
increases the probability of finding a match.” ( Jenkins, supra, 887
A.2d at p. 1018, fn. omitted.) The footnote in the middle of this
quotation elaborated: “In other words, the product rule number no
longer accurately expresses the random match ‘probability.’ That
same product rule number, however, still accurately expresses the
rarity of the DNA profile. Random match probability and rarity,
while both identical numbers, represent two distinct and separate
concepts. Only one of those concepts is affected by a database
search: the random match probability.” The court noted that “the
‘database match probability’ [the approach suggested in the 1996
NRC Report] more accurately represents the chance of finding a
cold hit match” and “can overcome the ‘ascertainment bias' of
database searches. ‘Ascertainment bias' is a term used to describe
the bias that exists when one searches for something rare in a set
database.”
Although the product rule no longer represents the random
match probability in a cold hit case, the Jenkins court ultimately
agreed with the government's argument “that regardless of the
database search, the rarity statistic is still accurately calculated and
appropriately considered in assessing the significance of a cold
hit.... [W]hile a database search changes the probability of
obtaining a match, it does not change how rare the existence of that
specific profile is in society as a whole.... This rarity is ... both
consistent and relevant regardless of the fact that [the defendant's]
identification is the product of a database search.”

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In a non-cold-hit case, we said that “[i]t is relevant for the
jury to know that most persons of at least major portions of the
general population could not have left the evidence samples.” We
agree with other courts that have considered the question that this
remains true even when the suspect is first located through a
database search. The database match probability ascertains the
probability of a match from a given database. “But the database is
not on trial. Only the defendant is.” (Modern Scientific Evidence,
supra, § 32:11, pp. 118–119.) Thus, the question of how probable it
is that the defendant, not the database, is the source of the crime
scene DNA remains relevant. ( Id. at p. 119.) The rarity statistic
addresses this question.
Defendant was a potential suspect shortly after Ollie
George was murdered in 1976. If modern DNA technology and
statistical methods had existed then, law enforcement authorities
might have compared his DNA to the crime scene DNA and
applied the product rule to obtain the same results ultimately
obtained after the database search that actually occurred. The
relevance and admissibility of the results obtained in that fashion
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would be beyond question today. The fact that the match ultimately
came about by means of a database search does not deprive the
rarity statistic of all relevance. It remains relevant for the jury to
learn how rare this particular DNA profile is within the relevant
populations and hence how likely it is that someone other than
defendant was the source of the crime scene evidence.

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43 Cal. 4th at 1266-67 (some internal quotation marks and citations omitted; footnote omitted).

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3. Analysis

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In support of his arguments, petitioner refers only to state law.5 Whether or not

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the Kelly test was applied or was satisfied in the state courts is not at issue here. Except for the

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title of his claim, petitioner makes no argument based on federal due process standards. (Dkt.

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Nos. 1, 17.) This court’s analysis of the claim shows the California Supreme Court’s decision

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was not unreasonable and, any event, the trial court’s admission of this evidence did not result in

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fundamental unfairness to petitioner.

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The California Supreme Court’s decision rests on the reliability and relevance of

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the statistical evidence in petitioner’s trial that showed it was extremely unlikely anyone besides

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petitioner could have been the source of the DNA evidence. The court determined that in a cold

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hit case, the product rule no longer represent the random match probability. 43 Cal. 4th at 1266.

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However, the product rule used in a cold hit case still appropriately and relevantly stated the

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rarity of the DNA profile. Id. at 1267. Regardless of how the match was made, the statistic

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showing that petitioner’s specific DNA profile was extremely rare in society as a whole was

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entirely relevant to the jury’s consideration of whether the DNA evidence identified petitioner as

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the perpetrator. See United States v. Williams, 2008 WL 5382264, *17-19 (C.D. Cal. Dec. 23,

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2008) (court considered similar challenge to DNA statistical evidence in a cold hit case; court

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In his opening brief before the California Supreme Court, petitioner did cite one federal
case, Cooper v. Sowder, 837 F.2d 284, 288 (6th Cir. 1988), for the proposition that the admission
of inadmissible and unreliable negative evidence could render a trial fundamentally unfair. The
evidence erroneously admitted in Cooper bears no relationship to the evidence allegedly admitted
erroneously here. While the decision in Cooper shows that it is possible to find a due process
violation from the admission of evidence, it does not otherwise support petitioner’s claim.
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held “the rarity statistic is clearly relevant because it informs the jury about how rare the DNA

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profile is in a population and thus how likely it is that someone other than Defendant was the

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source of the evidence”). The California Supreme Court’s decision was thorough and well-

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considered. There is no indication it was contrary to or an unreasonable application of clearly

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established federal law or based on an unreasonable application of the facts. For these reasons,

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petitioner’s claim 2 should be denied.

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C. Claim 3 - DOJ Allegedly Improperly Tested and Determined Significance of DNA
Evidence

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Petitioner’s next claim is that the trial court erred in ruling that the Department of

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Justice’s Crime Lab properly tested the DNA evidence in accordance with generally accepted

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procedures and properly interpreted the significance of that evidence. Respondent argues

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petitioner failed to raise this claim before the California Supreme Court and it is therefore

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unexhausted. That assertion appears to be true. Petitioner made the claim to the California

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Court of Appeal. (LD A at 95-97.) The Court of Appeal noted that petitioner’s argument rests

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on the third prong of the Kelly test discussed above regarding the admissibility of expert

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testimony. (LD D, App. A, at 54.) Because the court had rejected petitioner’s claim at the first

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prong of the Kelly test, it stated that it need not reach the third. (Id. at 55.)

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This court may address an unexhausted claim if it is meritless. 28 U.S.C. §

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2254(b)(2); Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005) (a federal court considering a

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habeas petition may deny an unexhausted claim on the merits when it is perfectly clear that the

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claim is not “colorable”). This claim is meritless. As described above with respect to claim 2,

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petitioner has made no showing that admission of the DNA evidence rendered his trial

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fundamentally unfair. Accordingly, Claim 3 should be denied as well.

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D. Claim 4 - Use of Three Major Ethnic Groups in DNA Statistic

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Petitioner’s final claim is that the trial court erred by allowing the prosecution to

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present statistical evidence with respect to three major ethnic groups, rather than with respect to
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the general population. As described above with respect to claim 2, this court will not consider a

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state court’s evidentiary ruling unless it rendered petitioner’s trial fundamentally unfair.

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Petitioner has not shown the trial court’s ruling was unfair.

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1. State Court Opinion

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Petitioner raised this claim before the Court of Appeal, who rejected it. He

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included it in his petition for review before the California Supreme Court, who denied review of

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the claim. (LD D at 22-24, LD E.) Therefore, the Court of Appeal decision is the last reasoned

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state court opinion on this issue. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). The Court

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of Appeal first noted that the California Supreme Court approved the practice of providing

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frequency evidence as to the three main population groups in People v. Wilson, 38 Cal. 4th 1237,

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1244-50 (2006). (LD D, App. A, at 56.) The court then noted:

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Moreover, contrary to defendant’s claim, presenting
frequencies for the major population groups did not infer that the
murderer in this case and defendant “shared the same race.” The
jurors were presented with evidence of the expected frequency of
the 13-loci profile for each of the three major population groups.
The testimony and argument did not focus the statistical analysis
on any particular population group; rather, it was presented solely
to show the overall rarity of the profile in any of the groups.
Nothing in the testimony or the arguments suggested that the DNA
evidence could indicate the race of the perpetrator. Because the
jurors were told of the rarity of a DNA profile in the three major
population groups and the rarity of the frequency in any group, they
could not bootstrap themselves into believing that the murderer
must have belonged to defendant’s racial group.

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Where, as here, the evidence demonstrates that the profile
is extraordinarily rare in all three major population groups, the only
inference the jury could draw was that the profile is extraordinarily
rare in the population as a whole. The fact a DNA profile is very
rare in any of the three major population groups tends to
demonstrate that the profile is rare in the population as a whole
and, therefore, meets the standard of relevance.

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(LD D, App. A, at 56-57.)

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2. Analysis

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Petitioner has not shown how introduction of the population group statistics

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rendered his trial fundamentally unfair. Nothing in the statistics required the jury to infer

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petitioner or the perpetrator was a member of a particular racial group. In fact, using all three

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statistics seems likely to have had the opposite effect. As noted by the Court of Appeal, the one

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inference to be drawn was that the DNA profile was extremely rare, regardless of race. Petitioner

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has not shown this inference was inappropriate or otherwise unfair.

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Petitioner has not established that the Court of Appeal’s decision was contrary to
or an unreasonable application of federal law or an unreasonable construction of the facts.

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Accordingly, Claim 4 should be denied.

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VI. Conclusion

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For all of the above reasons, IT IS HEREBY RECOMMENDED that petitioner’s
application for a writ of habeas corpus be denied.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-

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one days after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files

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objections, he shall also address whether a certificate of appealability should issue and, if so, why

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and as to which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if

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the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

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2253(c)(3). Any response to the objections shall be filed and served within fourteen days after

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service of the objections. The parties are advised that failure to file objections within the

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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

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F.2d 1153 (9th Cir. 1991).

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DATED: July 22, 2011

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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