Downer v. Cramer
Filing
47
ORDER signed by Senior Judge James K. Singleton on 07/19/11 ORDERING that the requests for an evidentiary hearing, funds, discovery, and subpoena powers are DENIED; the 1 Petition for Writ of Habeas Corpus is DENIED; the Court DECLINES to issue a Certificate of Appealability; Clerk to enter Judgment. CASE CLOSED (Benson, A.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
COLLIE GEORGE DOWNER,
No. 2:09-cv-03041-JKS
Petitioner,
MEMORANDUM DECISION
vs.
MATTHEW CATE,1 Secretary, California
Department of Corrections and
Rehabilitation,
Respondent.
Petitioner Collie George Downer, a state prisoner appearing pro se, filed a Petition for
Habeas Corpus Relief under 28 U.S.C. § 2254. Downer is currently in the custody of the
California Department of Corrections and Rehabilitation, incarcerated at the La Palma
Correctional Center, Elroy, Arizona. Respondent has answered, and Downer has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
In March 2004 Downer was convicted by a jury in the San Francisco Superior Court of
three counts (1-3) of forcible sexual penetration with a foreign object (Cal. Penal Code
§ 289(a)(1)), three counts (4-6) of forcible oral copulation (Cal. Penal Code § 288a(c)), two
counts (7-8) of forcible rape (Cal. Penal Code § 261(a)(2)), and two counts (9-10) of unlawful
sexual intercourse with a minor (Cal. Penal Code § 261.5(c)). The trial court sentenced Downer
to a total of forty years in state prison, consisting of the upper term of eight years on Count 7,
1
Matthew Cate, Secretary, California Department of Corrections and Rehabilitation, is
substituted for Matthew C. Kramer, Warden, Folsom State Prison. Fed. R. Civ. P. 25(d).
plus consecutive upper terms of eight years each on Counts 1, 2, 6, and 8. Downer timely
appealed his conviction and sentence to the California Court of Appeal, First District, which
affirmed his conviction and sentence in an unpublished decision.2 The Supreme Court granted
certiorari, vacated the judgment, and remanded the case to the California Court of Appeal for
further consideration in light of Cunningham v. California, 549 U.S. 270 (2007).3 On remand, in
an unpublished decision, the California Court of Appeal reaffirmed Downer’s conviction but
vacated Downer’s sentence and remanded the case to the trial court for re-sentencing.4 Prior to
the time he was re-sentenced by the trial court, Downer filed a Petition for Habeas Corpus Relief
under 28 U.S.C. § 2254 in this Court, which was dismissed as premature without prejudice.5 On
re-sentencing, the trial court reimposed the same sentence as it initially imposed. On appeal, the
California Court of Appeal affirmed Downer’s conviction and sentence in an unpublished
decision on May 12, 2009,6 and the California Supreme Court denied review on July 22, 2009.
While his appeal was pending, Downer filed a petition for habeas corpus relief in the San
Francisco County Superior Court, which was denied in a reasoned, unreported decision on
October 21, 2008. The California Court of Appeal denied his subsequent petition to that court on
November 20, 2008, on procedural grounds: “[t]he court will not consider repeated applications
for habeas corpus presenting claims previously rejected by the court,” citing In re Clark (1993) 5
2
People v. Downer, 2005 WL 2856892 (Cal. App. Oct. 31, 2005) (“Downer I”).
3
Downer v. California, 549 U.S. 1192 (2007) (Mem.).
4
People v. Downer, 2007 WL 3349745 (Cal. App. Nov. 13, 2007) (“Downer II”).
5
Downer v. Cramer, 2008 WL 2128049 (E.D. Cal. May 20, 2008).
6
People v. Downer, 2009 WL 1303207 (Cal. App. May 12, 2009) (“Downer III”).
2
Cal. 4th 750, 767.7 The California Supreme Court summarily denied his petition without opinion
or citation to authority on February 18, 2009.8 Downer timely filed his Petition in this Court on
May 26, 2009.
The facts underlying Downer’s conviction and sentence are well known to the parties and
are extensively set forth in detail in Downer I. Therefore, except to the extent necessary to
understand this decision, this Court will not repeat those facts.
II. GROUNDS RAISED/DEFENSES
In his Petition, Downer raises six grounds: (1) the trial court’s preclusion of crossexamination of the victim constituted a denial of his Sixth Amendment right to confrontation; (2)
newly discovered evidence establishes actual judicial bias by the trial judge; (3) the trial court’s
preclusion of cross-examination of the victim regarding her prior psychiatric history and the
introduction of related evidence constituted a denial of his right to confrontation under the Sixth
Amendment; (4) prosecutorial misconduct by eliciting, failing to correct, and arguing false
testimony; (5) the trial court failed to conduct an in camera review of the potentially exculpatory
psychiatric history of the victim; and (6) the imposition of an upper-term sentence violated
Blakely-Apprendi.9 Respondent does not assert any affirmative defense.10
7
Docket 1-1, p. 90.
8
Downer filed earlier petitions for habeas relief in the California courts. As they are not
germane to the issues before this Court, they have not been specifically listed.
9
Blakely v. Washington, 542 U.S. 296 (2005); Apprendi v. New Jersey, 530 U.S. 466
(2000).
10
See Rules—Section 2254 Cases, Rule 5(b).
3
III. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2254(d), this Court cannot grant relief unless the decision of the state court was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States” at the time the state court renders its decision or “was based
on an unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.”11 The Supreme Court has explained that “clearly established Federal law” in
§ 2254(d)(1) “refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the
time of the relevant state-court decision.”12 The holding must also be intended to be binding
upon the states; that is, the decision must be based upon constitutional grounds, not on the
supervisory power of the Supreme Court over federal courts.13 Thus, where holdings of the
Supreme Court regarding the issue presented on habeas review are lacking, “it cannot be said that
the state court ‘unreasonabl[y] appli[ed] clearly established Federal law.’”14 When a claim falls
under the “unreasonable application” prong, a state court’s application of Supreme Court
precedent must be objectively unreasonable, not just incorrect or erroneous.15 The Supreme
11
28 U.S.C. § 2254(d); see Williams v. Taylor, 529 U.S. 362, 404-06 (2000); see also
Lockyer v. Andrade, 538 U.S. 63, 70-75 (2003) (explaining this standard).
12
Williams, 529 U.S. at 412.
13
Early v. Packer, 537 U.S. 3, 10 (2002).
14
Carey v. Musladin, 549 U.S. 70, 77 (2006) (alterations by the Court); see Wright v. Van
Patten, 552 U.S. 120, 127 (2008) (per curiam); Kessee v. Mendoza-Powers, 574 F.3d 675, 67879 (9th Cir. 2009); Moses v. Payne, 555 F.3d 742, 753-54 (9th Cir. 2009) (explaining the
difference between principles enunciated by the Supreme Court that are directly applicable to the
case and principles that must be modified in order to be applied to the case; the former are clearly
established precedent for purposes of § 2254(d)(1), the latter are not).
15
Wiggins v. Smith, 539 U.S. 510, 520-21 (2003) (internal quotation marks and citations
(continued...)
4
Court has made clear that the objectively unreasonable standard is a substantially higher
threshold than simply believing that the state court determination was incorrect.16 “[A]bsent a
specific constitutional violation, federal habeas corpus review of trial error is limited to whether
the error ‘so infected the trial with unfairness as to make the resulting conviction a denial of due
process.’”17 In a federal habeas proceeding, the standard under which this Court must assess the
prejudicial impact of constitutional error in a state-court criminal trial is whether the error had a
substantial and injurious effect or influence in determining the outcome.18 Because state court
judgments of conviction and sentence carry a presumption of finality and legality, the petitioner
has the burden of showing by a preponderance of the evidence that he or she merits habeas
relief.19
In applying this standard, this Court reviews the last reasoned decision by the state
court.20 State appellate court decisions that affirm a lower court’s opinion without explanation
are presumed to have adopted the reasoning of the lower court.21 Under California’s unique
habeas procedure, a defendant who is denied habeas relief in the superior court files a new
15
(...continued)
omitted).
16
Schriro v. Landrigan, 550 U.S. 465, 473 (2007).
17
Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (quoting Donnelly v. DeChristoforo, 416
U.S. 637, 643 (1974)).
18
Fry v. Pliler, 551 U.S. 112, 121 (2007) (adopting the standard set forth in Brecht v.
Abrahamson, 507 U.S. 619, 637-38 (1993)).
19
Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002); see Wood v. Bartholomew, 516
U.S. 1, 8 (1995) (per curiam) (stating that a federal court cannot grant “habeas relief on the basis
of little more than speculation with slight support”).
20
Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991); Robinson v. Ignacio, 360 F.3d 1044,
1055 (9th Cir. 2004).
21
Ylst, 501 U.S. at 802-03.
5
original petition for relief in the court of appeal. If denied relief by the court of appeal, the
defendant has the option of either filing a new original petition for habeas relief or a petition for
review of the court of appeal’s denial in the California Supreme Court.22 This is considered as
the functional equivalent of the appeal process.23 Under AEDPA, the state court’s findings of
fact are presumed to be correct unless the petitioner rebuts this presumption by clear and
convincing evidence.24 This presumption applies to state trial courts and appellate courts alike.25
IV. DISCUSSION
A.
Evidentiary Hearing and Related Requests
In his Petition, Downer has requested appointment of counsel and an evidentiary hearing.
Related to the evidentiary hearing, Downer has requested sufficient funds to secure investigation
and expert assistance, authority to issue subpoenas, and the right to conduct discovery. Downer’s
request for appointment of counsel was previously denied.26
Downer misunderstands the function of a federal court in a habeas proceeding.
Ordinarily, a federal habeas proceeding is decided on the complete state-court record and a
federal evidentiary hearing is required only if the trier of fact in the state proceeding has not
developed the relevant facts after a full hearing.27 The Supreme Court made clear in Pinholster
that “review under [28 U.S.C.] § 2254(d)(1) is limited to the record that was before the state
22
See Carey v. Saffold, 536 U.S. 214, 221-22 (2002).
23
Id. at 222.
24
28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
25
Stevenson v. Lewis, 384 F.3d 1069, 1072 (9th Cir. 2004).
26
Docket No. 28.
27
Townsend v. Sain, 372 U.S. 293, 312-13, 319 (1963), overruled on other grounds by
Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992), superceded in part by statute, 28 U.S.C. 2254(e)(2)
(1996).
6
court that adjudicated the claim on the merits.”28 Although under Pinholster an evidentiary
hearing in a federal habeas proceeding is not absolutely precluded, Pinholster also made clear
that the discretion to grant a request for an evidentiary hearing is cabined by § 2254(e)(2),29
which provides:
If the applicant has failed to develop the factual basis of a claim in State court
proceedings, the court shall not hold an evidentiary hearing on the claim unless
the applicant shows that—
(A) the claim relies on—
(i) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously unavailable;
or
(ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear
and convincing evidence that but for constitutional error, no reasonable factfinder
would have found the applicant guilty of the underlying offense.
Downer’s request in this case does not meet that standard.
The appropriate place to develop the facts necessary to support a petition for federal
habeas relief is in the state court. It does not appear from the record that the state courts
precluded Downer from developing the factual basis for his claim.30 Downer has not identified
any factual conflict that would require this Court to hold an evidentiary hearing to resolve.
28
Cullen v. Pinholster, 563 U.S. ___, 131 S. Ct. 1388, 1398-99 (2011).
29
Id. at ___, 131 S. Ct. at 1400-01.
30
See id. at ___, 131 S. Ct. at 1417 n.5 (Sotomayor, J., dissenting) (assuming that the
majority did not intend to preclude an evidentiary hearing when the petitioner’s ability to develop
the facts was the fault of the state court itself).
7
B.
Merits
Grounds 1 and 3: Sixth Amendment Confrontation Claims
Downer contends that his Sixth Amendment rights to confront witnesses against him was
violated. Specifically, that the trial court erred in precluding cross-examination of the victim
concerning a prior “unsubstantiated claim” of having been sexually assaulted, her mental health
history (including her psychiatric diagnoses), the prescription medications she was taking, prior
hospitalizations, and excluding related evidence. In rejecting Downer’s arguments, the
California Court of Appeal held:
The evidentiary rulings at issue were the granting of the prosecution’s in
limine motion under Evidence Code section 352 to exclude evidence of E.W.’s
mental health history, and the denial of [Downer’s] request during E.W.’s
testimony for permission to introduce such evidence. E.W.’s mental health
problems were revealed in statements E.W. and her friend Jody made to the
police, and statements E.W. made during her sexual assault examination at San
Francisco General. According to defense counsel, E.W. told the police: that she
had been diagnosed with bipolar disorder; that she had been hospitalized at Alta
Bates and in Utah for psychiatric problems; that, unlike her, most of the girls at
the Utah facility were being treated for “sexual issues”; and that she wished she
had taken her medications before leaving for San Francisco on the night in
question in this case. Nurse Slaughter’s notes on form 925 under the heading
“Additional information” read: “[History] of psych hospitalization [times] two.
Reports being afraid of school. [History] of suicide/self mutilation.” [Downer’s]
attorney stated that E.W. reported having been sexually assaulted at Alta Bates,
and he added, “That was memorialized in a police report. Counsel has indicated
that that report was not followed up on, at the behest of [E.W.’s] father.” The
prosecutor stated that Jody told the police that, “‘because of [E.W.’s]
bipolar/OCD stuff,’” she did not initially believe E.W.’s account of having been
assaulted by [Downer].
E.W., Jody, and Slaughter testified about some of these matters in an
Evidence Code section 402 hearing. Slaughter said that her notes on E.W.’s
mental health history were made for medical rather than forensic purposes, and
that the information did not bear on E.W.’s credibility. E.W. admitted that she did
not take her medications before leaving home on the night [Downer] assaulted
her. She wished she had taken her medications, not because they made her feel
different, but because her mother got the misimpression that her failure to do so
had caused her to leave home. She might have told the police that she had been
8
diagnosed with bipolar disorder “because that was something that had been
thrown out there,” but she was a “little unclear” on her exact diagnosis, and
“highly doubt[ed] that I said that a doctor had diagnosed me, for sure, as bipolar.”
Jody testified that she told the police that E.W. suffered from bipolar
disorder, “OCD,” and depression, and that E.W. was taking medications and
seeing a therapist for those conditions. She told the police that, because of E.W.’s
mental health history, she did not initially believe E.W.’s report of having being
assaulted. She said that the doubt stemmed from her lack of medical training and
exposure to assault victims, rather than any concern with E.W.’s veracity. She
said that E.W. was shaking when she recounted the assaults, that she had never
seen E.W. shake that way before, and that she had just wanted to be clear with
E.W. about what had happened.
Defense counsel argued that E.W.’s bipolar disorder diagnosis was
relevant because symptoms of that disorder can include manic episodes involving
sexual indiscretions. [Downer] lodged below, for the appellate record, excerpts
from the “DSM-IV,” the fourth edition of the American Psychiatric Association’s
Diagnostic and Statistical Manual of Mental Disorders, covering the subjects of
bipolar disorders and manic episodes. This publication lists among the
characteristics of manic episodes “imprudent involvement in pleasurable activities
such as buying sprees, reckless driving, foolish business investments, and sexual
behavior unusual for the person, even though these activities are likely to have
painful consequences . . . Unusual sexual behavior may include infidelity or
indiscriminate sexual encounters with strangers.” As the trial court noted, there is
no suggestion that such behavior will be exhibited by everyone with bipolar
disorder.
Defense counsel argued that evidence of E.W.’s bipolar disorder was also
relevant to explain why she was shaking when she reported the assaults to Jody.
Counsel argued that E.W.’s hospitalization in Utah was relevant because she
would have feared being sent there, like most of the girls at the facility were, for
“sexual issues” if she admitted having consensual sex with [Downer]. Counsel
argued that the sexual assault at Alta Bates was relevant because E.W. might have
wanted to fabricate another such assault to make her father feel bad about his
unwillingness to have charges pressed over the Alta Bates incident.
The court excluded evidence concerning E.W.’s mental health, finding
under Evidence Code section 352 that “the prejudicial effect” of the evidence
“and the possible confusion of misleading of the jury on collateral issues
outweighs any probative value.” The court observed with respect to the matters
addressed at the Evidence Code section 402 hearing: that the information on the
925 form concerning hospitalizations, suicide, self-mutilation, and fear of school
did not bear on E.W.’s credibility; that E.W. said her medications did not “have
any effect on her perceived symptomatic responses”; and that Jody did not have
the expertise required to gauge whether E.W.’s mental health problems might
have affected the veracity of her report of the assaults. As for whether evidence of
E.W.’s mental illness could be used to explain her demeanor when she reported
9
the assaults, the court remarked that the defense would “have to have expert
testimony to establish that,” that the jury would have the opportunity to assess
E.W.’s demeanor when she testified, and that “this just takes us to a place where
we’re spending an awful lot of time on things that aren’t—maybe aren’t relevant
or necessary to make the points the defense wants to make . . . .”
After E.W. finished her initial direct examination, [Downer] asked the
court to reconsider its ruling prohibiting him from inquiring into her mental
health. In addition to renewing previous arguments, the defense submitted that
asking E.W. whether she fabricated the charges to avoid trouble at home opened
the door to questions about her Utah placement, and the fear she might have had
of being returned there if she admitted having consensual sex with [Downer]. The
court found the proffered evidence irrelevant for impeachment of E.W., and
adhered to its original ruling excluding the evidence. As a result of these rulings,
none of the subjects the defense wanted to explore involving E.W.’s mental health
was broached at trial, and the notes on form 925 concerning E.W.'s psychiatric
history were redacted before the document was admitted into evidence.
“[T]he mental illness or emotional instability of a witness can be relevant
on the issue of credibility, and a witness may be cross-examined on that subject, if
such illness affects the witness’s ability to perceive, recall or describe the events
in question.” (People v. Gurule (2002) 28 Cal.4th 557, 591-592; see also
Evid.Code, § 1103, subd. (a) [evidence of crime victim’s character trait is
admissible to prove conduct in conformity with the trait].) However, evidence
that is relevant and admissible may be excluded under Evidence Code section 352
if its probative value is substantially outweighed by the probability that its
admission will create substantial danger of undue prejudice or of misleading the
jury. Exclusion of evidence in accordance with Evidence Code section 352 does
not violate the defendant's constitutional rights (see, e.g., People v. Quartermain
(1997) 16 Cal.4th 600, 623), and such rulings are reviewable solely for an abuse
of discretion (e .g., People v. Jennings (2000) 81 Cal.App.4th 1301, 1314-1315).
“[T]he trial court enjoys broad discretion in assessing whether the probative value
of particular evidence is outweighed by concerns of undue prejudice [or]
confusion” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125), and we find
no abuse of that broad discretion here.
The court could reasonably find that evidence of E.W.’s possible bipolar
disorder diagnosis and of her psychiatric hospitalizations had no more than
minimal probative value. None of this evidence bore on E.W.’s ability to
perceive, recall, or recount events-the qualities in a witness of which mental
illness would generally be most probative. (See People v. Anderson (2001) 25
Cal.4th 543, 608-609 (conc. opn. of Kennard, J.) [observing that a “mental illness
that causes hallucinations or delusions is generally more probative of credibility
than a condition causing only depression, irritability, impulsivity, or anxiety”].)
That E.W. might possibly have bipolar disorder and that sexual acting out might
possibly be one symptom (among many others) of that disorder would have been
highly speculative grounds from which to infer that she was sexually aggressive
10
toward [Downer] as he claimed, particularly in view of the evidence that she was
a virgin who had never even held hands with a boy before the night in question. It
was also sheer speculation on [Downer’s] part to claim that E.W. might have
made up a story about being assaulted by [Downer] in order to hurt her parents or
for any other reason; there was no indication that she wanted to press charges over
the Alta Bates incident but was prevented by her father from doing so. As for
E.W.’s alleged fear of being recommitted to the facility in Utah for girls with
“sexual issues,” she was far more likely to have kept the incident with [Downer] a
secret, than to have reported it, if she were really concerned with that prospect.
On the other hand, evidence of possible bipolar disorder and its effects would
have been very prejudicial to E.W. because it would have painted her falsely as a
sexually aggressive person, and evidence of the hospitalizations would have been
potentially very misleading to the jury because the reasons for them had nothing to
do with her competence or credibility as a witness.
Similar considerations justified exclusion under Evidence Code section
352 of the evidence addressed at the Evidence Code section 402 hearing. The
mental health history notes on form 925 had no probative value, and were
potentially very misleading, because they did not bear on E.W.’s veracity. The
court could credit E.W.’s testimony that her regret over failing to take her
medications had nothing to do with her behavior on the night in question. That
Jody did not initially believe E.W.’s account of the assaults because of E.W.’s
history of mental illness had no probative value in view of Jody’s unfamiliarity
with mental disorders and sexual assaults. As for bipolar disorder as a possible
explanation of E.W.’s shaking when she reported the assaults to Jody, if E.W. was
in fact bipolar, and if that disorder might have caused the shaking as [Downer]
suggests, then presumably Jody would have observed such shaking by E.W. at
some point in the many years she had known her; however, Jody testified at the
Evidence Code section 402 hearing that she had never seen E.W. shake like she
did that night.
In sum, there were no persuasive reasons to admit any of the mental health
evidence, and very persuasive reasons for excluding it. [Downer] identifies no
precedent supporting his claim that admission of the evidence was required; the
cases on which he relies involved victims who had made (Redmond v. Kingston
(7th Cir.2001) 240 F.3d 590, 591-592), or may have made (Franklin v. Henry (9th
Cir.1997) 122 F.3d 1270, 1272),FN3 prior false sexual assault allegations, and there
is no evidence of any such previous false report by E.W. The court’s Evidence
Code section 352 ruling was not an abuse of discretion.31
FN3.
Franklin v. Henry was disapproved on another point in Payton v.
Woodford (9th Cir.2003) 346 F.3d 1204, 1217, which in turn was reversed
on another ground in Brown v. Payton (2005) 544 U.S. 133 [125 S.Ct.
1432, 1442].
31
Downer I, 2005 WL 2856892 at *7-*11.
11
It is well settled that a criminal defendant has a constitutional right to present a defense.32
This right is not, however, unfettered or without limitation. “[S]tate and federal rulemakers have
broad latitude under the Constitution to establish rules excluding evidence from criminal trials.”33
The Supreme Court has also acknowledged its “traditional reluctance to impose constitutional
restraints on ordinary evidentiary rulings by state trial courts.”34 “[T]he Due Process Clause
does not permit the federal courts to engage in a finely tuned review of the wisdom of state
evidentiary rules.”35 In criminal actions, “[t]he States are free to provide such procedures as they
choose, including rules of evidence, provided that none of them infringes a guarantee in Federal
Constitution.”36 This latitude, however, has limits. “Whether rooted directly in the Due Process
Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of
the Sixth Amendment, the Constitution guarantees criminal defendants ‘a meaningful
opportunity to present a complete defense.’”37 This right is abridged by evidentiary rules that
“infring[e] upon a weighty interest of the accused” and are “‘arbitrary’ or ‘disproportionate to the
purposes they are designed to serve.’”38 The Constitution clearly “prohibits the exclusion of
defense evidence under rules that serve no legitimate purpose or that are disproportionate to the
32
Crane v. Kentucky, 476 U.S. 683, 690 (1986).
33
United States v. Scheffer, 523 U.S. 303, 308 (1998); see Crane, 476 U.S. at 689-690;
Marshall v. Lonberger, 459 U.S. 422, 438, n. 6, (1983); Chambers v. Mississippi, 410 U.S. 284,
302-303 (1973); Spencer v. Texas, 385 U.S. 554, 564 (1967).
34
Crane, 476 U.S. at 689.
35
Estelle v. McGuire, 502 U.S. 62, 72 (1991) (quoting Marshall v. Lonberger, 459 U.S.
422, 438 n.6 (1983)).
36
Burgett v. Texas, 389 U.S. 109, 113-14 (1967).
37
Crane, 476 U.S. at 690 (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)).
38
Scheffer, 523 U.S. at 308 (quoting Rock v. Arkansas, 483 U.S. 44, 58, 56 (1987)).
12
ends that they are asserted to promote, well-established rules of evidence permit trial judges to
exclude evidence if its probative value is outweighed by certain other factors such as unfair
prejudice, confusion of the issues, or potential to mislead the jury.”39 The Supreme Court has
repetitively held that the Constitution permits judges “to exclude evidence that is ‘repetitive . . .,
only marginally relevant’ or poses an undue risk of ‘harassment, prejudice, [or] confusion of the
issues.’”40
Federal Rule of Evidence 403, as does its California counterpart, California Evidence
Code § 352, permits the exclusion of evidence if its probative value is “outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading the jury.” “A district court is accorded
a wide discretion in determining the admissibility of evidence under the Federal Rules.
Assessing the probative value of [the proffered evidence], and weighing any factors counseling
against admissibility is a matter first for the district court’s sound judgment under Rules 401 and
403 . . . .”41 California employs a similar rule.42
In this case, the California Court of Appeal, after exhaustively examining the rulings of
the trial court and applying the same rule as applied in the federal courts, found that the trial
court did not abuse its discretion in excluding the evidence or limiting the cross-examination of
the victim. This Court cannot say that decision was “contrary to, or involved an unreasonable
39
Holmes v. South Carolina, 547 U.S. 319, 326 (2006) (citing Fed. R. Evid. 403 as an
example).
40
Crane, 476 U.S. at 689-690 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679
(1986)) (ellipsis and brackets in original); see Montana v. Egelhoff, 518 U.S. 37, 42-43 (1996)
(plurality opinion) (terming such rules “familiar and unquestionably constitutional”).
41
United States v. Abel, 469 U.S. 45, 54 (1984); see Boyd v. City and County of San
Francisco, 576 F.3d 938, 948 (9th Cir. 2009).
42
See People v. Harris, 118 P.3d 545, 565 (Cal. 2005) (“[w]e review for abuse of
discretion a trial court’s rulings on the admissibility of evidence.”).
13
application of, clearly established Federal law, as determined by the Supreme Court of the United
States” or “was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.”43 Downer is not entitled to relief under his first and
third grounds.
Ground 2: Judicial Bias
Downer contends that the victim’s father sent a letter to the trial judge prior to trial
complaining about the length of time the case had been pending and was allegedly seen coming
from the judge’s chambers prior to the sentencing hearing.44 Downer raised this issue in his 2008
petitions for habeas relief in the state courts. In ruling against him, the San Francisco Superior
Court stated:
[. . . .] [Downer] asserts that two years after the conviction, he found in
his trial file a letter in which the father of the victim in this case wrote to the judge
complaining about the length of time the case had been pending. In addition,
[Downer’s friend saw a man she believed to be the victim’s father exiting the
judge’s chambers before the start of the sentencing hearing on April 29, 2004.
[Downer] claims the judge never made a record of these communications.
[Downer] believes these circumstances show the judge was biased against him
and, for this reason, erroneously excluded evidence about the victim’s sexual
history, her previous allegations of sexual assault on other occasions and her
history of mental illness.
* * * *
A petitioner for habeas corpus “will be expected to demonstrate due
diligence in pursuing potential claims. If a petitioner had reason to suspect that a
basis for habeas corpus relief was available, but did nothing to promptly confirm
those suspicions, that failure must be justified. “Before considering the merits of
a second or successive petition, a California court will first ask whether the failure
to present the claims underlying the new petition in a prior petition has been
43
28 U.S.C. § 2254(d).
44
The victim’s father in this case is the Clerk of the Court for the U.S. District Court for
the Northern District of California. Originally filed in the Northern District, because of the
victim’s relationship to the Clerk of the Northern District, venue was transferred to this district in
the interest of justice. Docket No. 17.
14
adequately explained, and whether that explanation justifies the piecemeal
presentation of the petitioner’s claims.” In assessing a petitioner’s explanation
and justification for the delayed presentation of a claim, the court will consider
whether the facts on which the claim is based, even though recently discovered,
could have been discovered earlier.
Here, [Downer’s] allegations either have already been addressed on habeas
corpus, or were not raised when they could have been.
In addition, the fact the letter from the victim’s father to the trial judge was
present in the trial folder does not support [Downer’s] claim that the judge did not
make a record of this communication.45
Downer attacks rulings made by the judge during the pretrial and trial that Downer
contends were erroneous, depriving him of his constitutional rights. As the Supreme Court has
stated:
[. . . .] First, judicial rulings alone almost never constitute a valid basis for
a bias or partiality motion. See United States v. Grinnell Corp., 384 U.S. at 583,
86 S.Ct., at 1710. In and of themselves (i.e., apart from surrounding comments or
accompanying opinion), they cannot possibly show reliance upon an extrajudicial
source; and can only in the rarest circumstances evidence the degree of favoritism
or antagonism required (as discussed below) when no extrajudicial source is
involved. Almost invariably, they are proper grounds for appeal, not for recusal.
Second, opinions formed by the judge on the basis of facts introduced or events
occurring in the course of the current proceedings, or of prior proceedings, do not
constitute a basis for a bias or partiality motion unless they display a deep-seated
favoritism or antagonism that would make fair judgment impossible. Thus,
judicial remarks during the course of a trial that are critical or disapproving of, or
even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias
or partiality challenge. They may do so if they reveal an opinion that derives from
an extrajudicial source; and they will do so if they reveal such a high degree of
favoritism or antagonism as to make fair judgment impossible.46
It is also noteworthy that, notwithstanding the fact that Downer has attacked these “erroneous
prejudicial rulings” on several levels, he has not prevailed in overturning any one of them.
45
Docket No. 1-1, pp. 84-86. Neither of the appellate courts addressed the merits.
46
Liteky v. United States, 510 U.S. 540, 555 (1994) (emphasis in the original).
15
Downer’s accusations are either based upon facts taken out of context or totally devoid of
any factual or legal basis, supported solely by his conclusory statements. There is nothing in the
father’s letter that can possibly be construed as urging the trial court to do more than expedite
bringing the matter to a conclusion. The fact that the father was the clerk of the federal district
court headquartered in San Francisco does not, standing alone, provide a basis for finding that a
state superior court judge was in any way influenced to rule one way or the other any more than
would such a letter from a member of the general public. As for the allegation that the father was
seen leaving the judge’s chambers, there is no evidence this occurred.47 Downer’s allegations in
this case do not come close to establishing judicial bias, let alone bias sufficient to warrant
granting him a new trial.48
Downer’s position is based upon speculation and conjecture, not fact. Based upon the
record before it, this Court cannot say that the decision of the San Francisco Superior Court was
“contrary to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States” or “was based on an unreasonable
47
Downer points to two statements made in letters to him from Valerie Rose. A note
dated May 13 in which it states: “Got an e-mail from Barbara. She talked to Gayle so we know
more about things. He denied that the father had been in the judge’s chambers. But what does
he know.” Docket 1-1, p. 112. In a letter dated July 14, 2004, she stated: “I think you should
know what I found out about Elizabeth W’s father. It turns out he is not a judge; he is probably
not even a lawyer. He is a Chief Clerk and this means that he’s the guy who lawyers file their
papers with. Supposedly he has no power or influence over judges. So I don’t know why Gayle
said he is a high ‘mucky muck,’ but we will investigate that further. [¶] There is still reason for
him not to want information about his family to come out and there is still suspicion on our parts
about what he was able to say to the lawyers and the judge.” Docket No. 1-1, pp. 112-13. These
are not only unsworn statements, even if accepted as true, they fall far short of establishing that
the father visited the trial judge in chambers.
48
Downer contends, without further elucidation, that this is “newly discovered evidence”
that establishes that he is “factually and legally innocent.” Even assuming it is newly discovered,
that it supports the conclusory allegation of innocence is as logically inexplicable as it is
unexplained.
16
determination of the facts in light of the evidence presented in the State court proceeding.”49
Downer is not entitled to relief under his second ground.
Ground 4: Prosecutorial Misconduct
Downer contends that the prosecutor elicited, failed to correct, and argued false testimony
from the victim. Downer contends that the prosecutor elicited false testimony concerning the
victim’s prior lack of sexual experience. Downer’s argument also focuses on the comments
made by the prosecutor during closing, in which he referred to the character of the victim’s
testimony as being truthful and capable of belief, e.g., by pointing out that she would correct
either lawyer if she was asked a question that wasn’t quite right. The prosecutor also referred to
the victim, a 16-year old, as being inexperienced and naive. The prosecutor gave reasons that the
jury should accept the victim’s testimony and reject Downer’s contrary testimony. The thrust of
Downer’s argument is that this was improper because he, Downer, was precluded by the trial
court’s rulings from introducing the evidence referred to above in Downer’s first and third
grounds that would have shown the victim’s testimony as being false.50
Although it appears that Downer raised this issue on direct appeal, the California Court of
Appeal did not address it in either Downer I, II, or III. When there is no reasoned state court
decision denying an issue presented to the state “it may be presumed that the state court
adjudicated the claim on the merits in the absence of any indication or state-law procedural
principles to the contrary.”51 Where the presumption applies, this Court must perform an
49
28 U.S.C. § 2254(d).
50
This Court also notes that interspersed in his argument on this ground, Downer
continually refers to the “erroneous” rulings by the trial judge and the effect of precluding
Downer from attacking the victim’s credibility, including her inconsistent pretrial statements.
51
Harrington v. Richter, 562 U.S. ___, ___, 131 S. Ct. 770, 784-85 (2011).
17
independent review of the record to ascertain whether the state court decision was objectively
unreasonable.52 In so doing, because it is not clear that it did not so do, the Court presumes that
the state court decision rested on federal grounds,53 giving the presumed decision the same
deference as a reasoned decision.54 The scope of this review is for clear error of the state court
ruling on the petition:
[A]lthough we cannot undertake our review by analyzing the basis for the state
court’s decision, we can view it through the “objectively reasonable” lens ground
by Williams . . . . Federal habeas review is not de novo when the state court does
not supply reasoning for its decision, but an independent review of the record is
required to determine whether the state court clearly erred in its application of
controlling federal law. Only by that examination may we determine whether the
state court’s decision was objectively reasonable.55
“[A]lthough we independently review the record, we still defer to the state court’s ultimate
decision.”56
“To warrant habeas relief, prosecutorial misconduct must ‘so infect the trial with
unfairness as to make the resulting conviction a denial of due process.’”57
In determining whether a comment rendered a trial constitutionally unfair, factors
[the court] may consider are whether the comment misstated the evidence,
whether the judge admonished the jury to disregard the comment, whether the
52
Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006); Pham v. Terhune, 400 F.3d
740, 742 (9th Cir. 2005) (per curiam).
53
See Harris v. Reed, 489 U.S. 255, 263 (1989); Coleman v. Thompson, 501 U.S. 722,
740 (1991).
54
Richter, 562 U.S. at ____, 131 S. Ct. at 784-85 (rejecting the argument that a summary
disposition was not entitled to § 2254(d) deference).
55
Delgado v. Lewis (Delgado II), 223 F.3d 976, 982 (9th Cir. 2000) (internal citation
omitted); see also Lewis v. Mayle, 391 F.3d 989, 996 (9th Cir. 2004).
56
Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
57
Davis v. Woodford, 384 F.3d 628, 644 (9th Cir. 2004) (quoting Darden v. Wainwright,
477 U.S. 168, 181 (1986)).
18
comment was invited by defense counsel in its summation, whether defense
counsel had an adequate opportunity to rebut the comment, the prominence of the
comment in the context of the entire trial and the weight of the evidence.58
In essence, what is required is that reviewing courts consider the equivalent to evaluating
whether there was a “reasonable probability” of a different result.59
“[T]he [Supreme] Court has consistently held that a conviction obtained by the knowing
use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable
likelihood that the false testimony could have affected the judgment of the jury.”60 There is no
allegation, let alone any evidence, that the prosecutor in this case knowingly used false or
perjured testimony, the essential elements of prosecutorial misconduct.61 Downer highlights
several areas in which the testimony of the victim appears to be inconsistent with, or contradicted
by, statements she made to the investigating officers four years earlier. According to Downer,
these statements, which were excluded by the trail court’s rulings but known by the prosecutor,
clearly show that she was not a sexually inexperienced virgin. This Court’s review of those
statements referred to by Downer, which are not only taken out of context but are inherently
ambiguous in context, indicates they do not support Downer’s interpretation. Inconsistencies or
contradictions in testimony are an insufficient basis for finding that the prosecutor knowingly
introduced false testimony.62 Nor does the fact that the prosecution presented a witness who
58
Hein v. Sullivan, 601 F.3d 897, 912-13 (9th Cir. 2010); see Darden, 477 U.S. at 182.
59
See Hein, 601 F.3d at 914-15.
60
United States v. Agurs, 427 U.S. 97, 103 (1976).
61
See Napue v. Illinois, 360 U.S. 264, 269 (1959); Murtishaw v. Woodford, 255 F.3d 926,
959 (9th Cir. 2001).
62
See United States v. Zuno-Arce, 44 F.3d 1420, 1423 (9th Cir. 1995) (refusing to reverse
where defendant “offered no evidence whatsoever for prosecutorial misconduct except for the
(continued...)
19
made contradictory statements concerning the details of the incident necessarily lead to the
conclusion that the prosecutor knowingly introduced false or perjurious testimony absent
evidence that the prosecutor knew which story was false.63
The prosecutor’s comments in closing, taken in context, do not establish prosecutorial
misconduct. “[I]t is not enough that the prosecutor’s remarks were undesirable or even
universally condemned.”64 “The relevant question is whether the prosecutor’s comments ‘so
infected the trial with unfairness as to make the resulting conviction a denial of due process.’”65
“Counsel are given latitude in the presentation of their closing arguments, and courts must allow
the prosecution to strike hard blows based on the evidence presented and all reasonable
inferences therefrom.”66 “But, while [the government] may strike hard blows, [it] is not at liberty
to strike foul ones.”67 “[A] court should not lightly infer that a prosecutor intends an ambiguous
remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation,
will draw that meaning from the plethora of less damaging interpretations.”68
Prosecutors are permitted to tell jurors that they are to consider the witness’s conduct,
demeanor, and believability.69 Because it is reasonable to infer where there are two conflicting
62
(...continued)
inference from discrepancies”).
63
See United States v. Sherlock, 962 F.2d 1349 (9th Cir. 1989).
64
Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citations and internal quotation
marks omitted).
65
Id.
66
Ceja v. Stewart, 97 F.3d 1246, 1253 (9th Cir. 1996).
67
Berger v. United States, 295 U.S. 78, 88 (1935).
68
Donnelly v. DeChristoforo, 416 U.S. 637, 647 (1974).
69
United States v. Gooch, 506 F.3d 1156, 1160-61 (9th Cir. 2007).
20
stories that one of the two sides is being untruthful, it is not improper for the prosecutor to argue
why one should be believed and the other disbelieved.70
A prosecutor may not, however, vouch for the credibility of a witness. As the Supreme
Court has explained:
The prosecutor’s vouching for the credibility of witnesses and expressing his
personal opinion concerning the guilt of the accused pose two dangers: such
comments can convey the impression that evidence not presented to the jury, but
known to the prosecutor, supports the charges against the defendant and can thus
jeopardize the defendant's right to be tried solely on the basis of the evidence
presented to the jury; and the prosecutor’s opinion carries with it the imprimatur
of the Government and may induce the jury to trust the Government’s judgment
rather than its own view of the evidence.71
A prosecutor’s argument that a witness testified truthfully or is entitled to belief, to the extent it
is merely commenting on evidence in the record or the demeanor of the witness while testifying,
does not constitute improper vouching.72 In this case, the prosecutor did nothing more than point
to reasons why the jury should believe the victim and not Downer. The prosecutor did not
“vouch” for the credibility of the victim.
Based upon the record before it, this Court cannot say that the assumed decision of the
California Court of Appeal was “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States” or “was based
on an unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.”73 Downer is not entitled to relief under his fourth ground.
70
United States v. Molina, 934 F.2d 1440, 1445 (9th Cir. 1991).
71
United States v. Young, 470 U.S. 1, 18-19 (1985).
72
Gooch, 506 F.3d at 1160-61.
73
28 U.S.C. § 2254(d).
21
Ground 5: In Camera Review
Downer contends that the trial court erred in failing to review in camera the psychiatric
records and diary of the victim. As Respondent correctly notes, Downer’s contention is factually
rebutted by the record. The record reflects that not only did the trial court review the medical
records in camera, but so did the California Court of Appeal.74 Downer is not entitled to relief
under his fifth ground.
Ground 6: Blakely-Apprendi
Downer contends that the imposition of the upper term on all counts of which he was
convicted and making all terms fully consecutive was based upon facts not found to be true by
the jury. This, Downer argues, violates the principal of Blakely and Apprendi.75 In rejecting
Downer’s arguments, the California Court of Appeal held:
[Downer] appeals again, and claims that the trial court’s imposition of the
upper terms without a jury trial on the second factor (i.e., that he tried to blame the
victim) violated his constitutional rights. [Downer] acknowledges that the
resentencing proceedings conducted by the trial court complied with the holdings
in Black II and Sandoval, to the extent that the upper terms were based on the
victim’s minor status which was found true by the jury in its verdict on counts 9
and 10. Rather, his arguments on appeal are directed at establishing that Black II
and Sandoval were wrongly decided, insofar as they hold that the imposition of an
upper term is constitutionally permissible so long as one legally sufficient
aggravating circumstance has been found to exist by the jury. (Black II, supra, 41
Cal.4th at p. 816; Sandoval, supra, 41 Cal.4th at p. 839.) Nevertheless, [Downer]
accepts that we are bound by both of these decisions. (Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455.)
74
Downer I, 2005 WL 2856892 at *7.
75
Inexplicably, despite the fact that he “won” before the Supreme Court in Downer I
based on Cunningham, Downer simply mentions Cunningham in passing, but does not argue its
applicability in this case.
22
As we are bound by Black II and Sandoval, it would serve no purpose for
us to analyze the merits of appellant's arguments.FN3 Black II and Sandoval
require us to reject [Downer’s] contentions.76
FN3.
In any event, we note that, by its multiple guilty verdicts, the jury
implicitly rejected the defense theory that appellant’s sexual offenses were
the result of the 16-year-old victim’s conduct.
In Cunningham, the Supreme Court did not invalidate upper-term sentences imposed as a
result of prior convictions found by the court instead of the jury.77 Under Black II, only one
aggravating factor is necessary to set the upper term as the maximum sentence. This is consistent
with the Sixth Amendment requirement embodied in the Apprendi-line of cases.78 The Sixth
Amendment does not preclude the imposition of consecutive sentences based upon the factual
findings by a judge rather than a jury.79
The decision of the California Court of Appeal was not contrary to, nor did it involve an
unreasonable application of, clearly established Federal law, as determined by the Supreme Court
of the United States.80 Accordingly, Downer is not entitled to relief under his sixth ground.
V. CONCLUSION AND ORDER
Downer is not entitled to relief on any ground raised in his Petition.
IT IS THEREFORE ORDERED THAT the requests for an evidentiary hearing, funds,
discovery, and subpoena powers are DENIED.
IT IS FURTHER ORDERED THAT the Petition under 28 U.S.C. § 2254 for Writ of
Habeas Corpus is DENIED.
76
Downer III, 2009 WL 1303207 at *2.
77
Cunningham, 549 U.S. at 288-89.
78
See Butler v. Curry, 528 F.3d 624, 643 (9th Cir. 2008).
79
Oregon v. Ice, 555 U.S. 160, ___, 129 S.Ct. 711, 717-18 (2009).
80
28 U.S.C. § 2254(d).
23
IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of
Appealability.81 Any further request for a Certificate of Appealability must be addressed to the
Court of Appeals.82
The Clerk of the Court is to enter judgment accordingly.
Dated: July 19, 2011.
/s/ James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
United States District Judge, District of Alaska
Sitting by Assignment
81
28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 484 (2000) (a COA should be
granted where the applicant has made “a substantial showing of the denial of a constitutional
right,” i.e., when “reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.”) (internal quotation marks omitted).
82
See Fed. R. App. P. 22(b); Ninth Circuit R. 22-1.
24
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