Watts v. Adams

Filing 41

MEMORANDUM DECISION signed by Senior Judge James K. Singleton on 2/8/13 DENYING 1 Petition for Writ of Habeas Corpus; and DECLINING to issue a Certificate of Appealability. Any further request for a Certificate of Appealability must be addressed to the Court of Appeals. The Clerk of the Court is to ENTER judgment accordingly. CASE CLOSED. (Meuleman, A)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
CHICO ROMERO WATTS,
No. 2:10-cv-277-JKS
Petitioner,
MEMORANDUM DECISION
vs.
D. ADAMS,
Respondent.

I. BACKGROUND/PRIOR PROCEEDINGS
Presently before this Court is Chico Romero Watts’ (“Watts”) Amended Petition for a
writ of habeas corpus under 28 U.S.C. § 2254, filed in March 2012. In April 2007, Watts was
convicted by a Siskiyou County jury for various firearm offenses in two cases, and another jury
in the third case in June 2007 found him guilty of misdemeanor battery, inflicting corporal injury
on a cohabitant, assault by means of force likely to cause great bodily injury, false imprisonment
by violence, and battery. In July 2007, Watts was sentenced by the trial court on the various
charges to a total term of twenty-seven years and four months.
The California Court of Appeal affirmed the judgment in April 2009, and the California
Supreme Court denied review in August 2009. After initially filing a habeas petition in this
Court in February 2010, Watts’ exhausted claims were stayed and held in abeyance while he
exhausted his state-court remedies. Doc No. 17. In February 2012, Watts filed a notice that his
claims were exhausted, and the Magistrate Judge ordered Watts to file an Amended Petition.
Doc. No. 28, 29.

II. GROUNDS RAISED
In March 2012, Watts filed an Amended Petition, making the following six claims: (1)
that he was unconstitutionally shackled during trial; (2) that there was insufficient evidence to
support various sentencing enhancements; (3) that the trial court improperly denied his Faretta
motion for self-representation; (4) that the trial court improperly limited his custodial credits; (5)
that the trial court erred by giving an inadequate unanimity jury instruction on the assault and
battery counts; and (6) that the prosecutor committed misconduct. Respondent claims that
Watts’ second, fourth, fifth and sixth claims are procedurally defaulted.
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,” § 2254(d)(1), or “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding,”
§ 2254(d)(2). A state-court decision is “contrary” to federal law “if the state court applies a rule
that contradicts the governing law set forth” in controlling, Supreme Court authority or “if the
state court confronts a set of facts that are materially indistinguishable from a decision” of the
Supreme Court, but nevertheless arrives at a different result. Williams v. Taylor, 529 U.S. 362,
405-06 (2000).
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.” Williams, 529 U.S. at 412. The holding must also be intended to
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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. Early v. Packer, 537 U.S. 3,
10 (2002). 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.’” Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted). In applying these
standards in habeas review, this Court reviews the “last reasoned decision” by the state court.
Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004) (citing Avila v. Galaza, 297 F.3d 911,
918 (9th Cir. 2002)). 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. 28 U.S.C. §
2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
IV. Discussion
A.

Procedural Default
Respondent argues that Watts’ second, fourth, fifth, and sixth claims have been

procedurally defaulted.
Federal courts “will not review a question of federal law decided by a state court if the
decision of that court rests on a state law ground that is independent of the federal question and
adequate to support the judgment.” Coleman v. Thompson, 501 U.S. 722, 729 (1991). This
Court may not reach the merits of procedurally defaulted claims, that is, claims “in which the
petitioner failed to follow applicable state procedural rules in raising the claims . . . .” Sawyer v.
Whitley, 505 U.S. 333, 338 (1992). Procedural default does not preclude federal habeas review
unless the last state court rendering judgment in a case clearly and expressly states that its

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judgment rests on a state procedural bar. Teague v. Lane, 489 U.S. 288, 298-99 (1989) (citing
Harris, 489 U.S. at 262-63).
“[I]n order to constitute adequate and independent grounds sufficient to support a finding
of procedural default, a state rule must be clear, consistently applied, and well established at the
time of the petitioner’s purported default.” Morales v. Calderon, 85 F.3d 1387, 1393 (9th Cir.
1996) (internal quotation marks omitted); see also Park v. California, 202 F.3d 1146, 1152 (9th
Cir. 2000) (“For a state procedural rule to be ‘independent,’ the state law ground for decision
must not be ‘interwoven with federal law.’” (citing Michigan v. Long, 463 U.S. 1032, 1040-41
(1983); Harris, 489 U.S. at 265)). The fact that the state court also ruled on the merits in the
alternative does not vitiate a procedural bar defense. Comer v. Schriro, 480 F.3d 960, 964 n.6
(9th Cir. 2007) (citing Harris, 489 U.S. at 264 n.10).
If a petitioner’s claim is defaulted in state court on an adequate and independent state
ground, it will not be considered in a federal habeas proceeding unless the petitioner can
demonstrate cause for the default and actual prejudice, i.e., a miscarriage of justice. Coleman,
501 U.S. at 729. To prove a fundamental miscarriage of justice, a petitioner must show that a
constitutional violation probably resulted in his conviction despite his actual innocence. See
Schlup v. Delo, 513 U.S. 298, 321-25 (1995) (linking miscarriages of justice to actual
innocence); United States v. Olano, 507 U.S. 725, 736 (1993) (“In our collateral-review
jurisprudence, the term ‘miscarriage of justice’ means that the defendant is actually innocent.”).
1. Claims Two, Four, and Five
In his Traverse, Watts states that he wishes to withdraw his second, fourth, and fifth
claims. Doc. No. 39 at 8, 15. Accordingly, this Court will not address his second (sufficiency of
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the evidence), fourth (improper limitation of custodial credits), or fifth (inadequate jury
instructions) claims. Watts is not entitled to relief on those claims.
2. Claim Six
In his sixth claim, Watts argues that the prosecutor committed multiple acts of prejudicial
misconduct. Respondent argues that although Watts presented this claim in his state-habeas
petition to the California Supreme Court, Lodged Doc. 16, at 30-57, he never presented it on
direct appeal to the California Supreme Court, see Lodged Doc. 14. The California Supreme
Court denied this claim on habeas review, citing In re Waltreus, 62 Cal.2d 218 (1965). Lodged
Doc. 17. Respondent argues therefore that the citation to Waltreus under these circumstances
amounts to a procedural default and thus bars this Court’s review of the claim, relying on Forrest
v. Vasquez, 75 F.3d 562, 563 (9th Cir. 1996).
Respondent’s position is essentially that a denial of a claim under Waltreus, a rule which
provides that “any issue that was actually raised and rejected on appeal cannot be renewed in a
petition for a writ of habeas corp,” Forrest v. Vasquez, 75 F.3d 562, 563 (9th Cir. 1996) (internal
quotation marks and citation omitted), results in a procedural default thus barring this Court from
reaching the merits of this claim. Whitley, 505 U.S. at 338; Doc. No. 37 at 39, 48-49, 51-52, 6061. However, the Ninth Circuit has stated that a denial under Waltreus “is neither a ruling of
procedural default nor a ruling on the merits,” but rather “merely bars relitigation in state habeas
proceedings of claims already litigated on direct appeal.” Carter v. Giurbino, 385 F.3d 1194,
1198 (9th Cir. 2004).
Indeed, “a citation to Waltreus by a state court, standing alone, is neither a ruling on the
merits, nor a denial on procedural grounds, and, as such, has no bearing on a California
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Prisoner’s ability to raise a constitutional claim on Federal habeas review.” Medina v. Sandor,
2012 WL 3689906, at * 4-6 (C.D. Cal. June 14, 2012) (citing Ylst v. Nunnemaker, 501 U.S. 797,
805 (1991)). In a situation such as this one, where Respondent “asserts that a petition brought by
a California state prisoner is procedurally barred by a citation to Waltreus, a court must ‘look
through’ that citation to the last reasoned state court decision in order to determinate whether the
citation to Waltreus was based on an earlier procedural bar.” Id. (citing Ylst, 501 U.S. at 805806).
Respondent argues that in Forrest v. Vasquez, similar to this case, the petitioner Forrest
failed to timely raise his library access claim on direct review to the California Supreme Court.
75 F.3d at 563-64. Forrest later filed for relief from default to the California Supreme Court on
direct review, but the California Supreme Court denied his application for relief from default
since Forrest had failed to follow Rule 28(b) of the California Rules of Court (now Rule
8.500(e)), which requires a petition for review on direct appeal to the California Supreme Court
to be filed within ten days after the Court of Appeal decision becomes final. Id. at 563. Forrest
later raised his library access claim in a state-habeas petition to the California Supreme Court,
but the court denied his claim citing only Waltreus. Id.
The Ninth Circuit held that Forrest’s library access claim was procedurally defaulted, not
because of the California Supreme Court’s rejection of his claim with a citation only to Waltreus
on state habeas review, but rather because of his failure to follow Rule 28(b). Id. The Ninth
Circuit noted that a “direct appeal is not necessary to exhaust state remedies if state law provides
an alternative route of review through a writ of habeas corpus brought before the state’s highest
court,” id. (citing Acosta-Huerta v. Estelle, 7 F.3d 139, 141 (9th Cir. 1993)), but that in
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California, “habeas corpus is not an alternative to a direct appeal” because of California’s Dixon
rule,” which “‘generally prohibits raising an issue in a postappeal habeas corpus petition when
that issue was not, but could have been, raised on appeal,’” id. (citing In re Harris, 21 Cal. Rptr.
2d 373, 395 (1993); In re Dixon, 264 F.2d 513 (1954)). The court noted that in Ylst, the Supreme
Court concluded that a citation to Waltreus “is neither a ruling on the merits nor a denial on
procedural grounds,” that “a Waltreus denial on state habeas review has no bearing on [a
petitioner’s] ability to raise a claim in federal court,” and that therefore “federal courts ‘look
through’ a denial based on Waltreus” to the last reasoned state court decision addressing the
claim. Id. at 564. in
In Forrest, however, the Ninth Circuit explicitly refused to look through prior
unexplained state court decisions to the last reasoned opinion addressing the claim because it
claimed the “‘nature’ and ‘surrounding circumstances’ of the unexplained order clearly show[ed]
that the basis of the decision was a procedural default.” Id. (citing Ylst, 501 U.S. at 802;
Coleman, 501 U.S. at 735 n.*).
What makes Watts situation slightly different than Forrest is that there, the Ninth Circuit
clearly understood that the California Supreme Court’s rejection of the library access claim with
a citation to Waltreus rested on an independent and adequate state procedural ground. This is so
because Forrest had applied for relief from default on direct appeal to the California Supreme
Court, which denied his claim specifically because his petition for review on direct appeal was
untimely under Rule 28(b) of the California Rules of Court. Thus, when the Forrest Court
looked through the California Supreme Court’s citation to Waltreus, it saw the California
Supreme Court’s denial of Forrest’s application for relief from default, which made it clear that
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his library access card claim had been denied because of a state procedural rule. See Medina,
2012 WL 3689906, at * 4 (“In Forrest, since the California Supreme Court denied the
petitioner’s habeas petition with a citation to Waltreus, the Ninth Circuit ‘look[ed] through
Waltreus to an order that was clearly based on [petitioner’s] failure to comply with a procedural
rule,’ referencing the California Supreme Court’s denial of petitioner’s application for relief from
default, which was the last explained opinion, and which was based on a procedural bar.”).
Here, however, as to Watts’ sixth claim, the last reasoned decision was that of the
California Court of Appeal and not a decision of the California Supreme Court which clearly
rested on an independent and adequate state procedural ground, which was the case in Forrest.
Thus, while Respondent is correct in that under the facts of Forrest, a citation to Waltreus under
those circumstances did amount to a procedural default, this Court cannot assume, as the Forrest
court did, that the California Supreme Court rejected this claim on an independent and adequate
state procedural ground in its citation to Waltreus.
Accordingly, since Watts did not withdraw this claim (claim six), this Court must “‘look
through’ the Waltreus citation to the last reasoned state court decision, in this case the California
Court of Appeal’s decision on direct appeal, in order to determine whether the citation to
Waltreus was based on an earlier procedural bar.” Medina, 2012 WL 3689906, at * 4-6. (citing
Ylst, 501 U.S. at 805).
a. The California Court of Appeal’s Decision
Addressing Watts’ multiple claims of prosecutorial misconduct, the California Court of
Appeal declined to rule on the merits of the first sixteen claims, stating that Watts had forfeited
these claims based on (1) his attorney’s failure to request an admonition after the court sustained
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defense counsel’s objection (thirteen claims of misconduct) and (2) his attorney’s failure to
object to the prosecutor’s statements during closing arguments (three claims of misconduct).
Lodge Doc. 11 at 25-38.
b. Analysis
The Ninth Circuit has held that in the prosecutorial misconduct context, claims are
procedurally defaulted where the state court refuses to address the claims because the defendant
failed to make a contemporaneous objection to the prosecutor’s statements. See Fairbanks v.
Ayers, 650 F.3d 1243, 1256-57 (9th Cir. 2011) (noting that California “consistently applies its
contemporaneous objection rule when a party fails to object to the admission of evidence,” and
holding that because the state supreme court relied on this rule in ruling that the prosecutorial
misconduct claim was waived, Fairbanks’ prosecutorial misconduct claims were procedurally
defaulted based on an independent and adequate state procedural rule); see also Rich v.
Calderon, 187 F.3d 1064, 1069-70 (9th Cir. 1999) (“We may not review his six other
prosecutorial misconduct claims because Rich procedurally defaulted by failing to make
contemporaneous objections, and the California court consequently invoked a procedural bar to
their consideration, the validity of which Rich has failed to overcome.”).
This Court will not address Watts’ prosecutorial misconduct claims that the state court
ruled were not preserved for appeal and thus were forfeited, because this forfeiture was an
adequate and independent state ground upon which the state court rejected these claims, unless
Watts can demonstrate cause for the default and actual prejudice, i.e., a miscarriage of justice.
Coleman, 501 U.S. at 729. Watts is unable to meet this burden. Consequently, sixteen of the

9

nineteen prosecutorial misconduct claims, or those which the state court refused to address on the
merits because Watts failed to preserve those claims on appeal, are procedurally defaulted.
B.

Merits
1. Claim One: Shackling at trial
Watts contends that the trial court erred in shackling him during trial because there was

no “manifest necessity to shackle” him during the trial. Doc. No. 30 at 13. Respondent contends
that Watts has failed to show that the California Court of Appeal’s decision denying this claim on
direct appeal was contrary to or an unreasonable application of clearly established federal law.
Doc. No. 37 at 24.
a. The California Court of Appeal’s Decision
The California Court of Appeal noted that a defendant may be physically restrained
during trial “only upon a finding of manifest need based on an affirmative showing of the
defendant’s expressed intent to escape, past violence or threat of violence, or other
nonconforming conduct that has disrupted the proceedings or will disrupt them in the absence of
restraints.” Lodged Doc. 11, at 16-20 (citing People v. Vance, 141 Cal. App. 4th 1104, 1112
(2006)). Watts claimed that the trial court simply deferred to his trial counsel’s fear and that
there was no evidence that Watts intended to harm counsel. The court rejected this, noting that
the trial court properly considered the facts before it and that considering trial counsel’s own first
hand account of Watts’ behavior was proper. Id.
b. Analysis
The Supreme Court has stated that the Fifth and Fourteenth Amendments prohibit using
physical restraints visible to the jury absent a trial court determination, in the exercise of its
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discretion, that restraints are justified by a state interest specific to the particular defendant on
trial. Deck v. Missouri, 544 U.S. 622, 622 (2007). In Deck, the Supreme Court noted that
“[v]isible shackling undermines the presumption of innocence and the related fairness of the
factfinding process” and “suggests to the jury that the justice system itself sees a need to separate
a defendant from the community at large.” Id. at 630. Further, “shackles can interfere with the
accused’s ‘ability to communicate’ with his lawyer” and diminishes the defendant’s right to
counsel. Id. at 631 (citing Illinois v. Allen, 397 U.S. 337, 344 (1970)). Finally, in Deck the
Supreme Court stated that “the routine use of shackles in the presence of juries would
undermine” the dignity of the courtroom and our judicial system. Id. (“[T]he use of shackles at
trial ‘affronts’ the ‘dignity and decorum of judicial proceedings that the judge is seeking to
uphold.’” (citing Allen, 397 U.S. at 344)).
However, in Deck the Court also noted that the right is not absolute, and a trial court is
permitted, “in the exercise of [its] discretion, to take account of special circumstances, including
security concerns, that may call for shackling.” Id. at 633. The Court in Deck added:
In doing so, it accommodates the important need to protect the courtroom and its
occupants. But any such determination must be case specific; that is to say, it
should reflect particular concerns, say, special security needs or escape risks,
related to the defendant at trial.
Id.1

1

It should be noted that in Deck the Supreme Court overturned the Missouri Supreme
Court’s decision to uphold the trial court’s decision to restrain Deck during the sentencing
proceeding, where he was sentenced to death for murder. The Supreme Court found that Deck’s
due process rights were violated and overturned the Missouri Supreme Court’s decision because
the jury saw the restraints, the trial court did not discuss specific reasons why Deck needed to be
shackled, and because shackling is inherently prejudicial. Deck, 544 U.S. at 623. There,
however, the trial court did not make a finding that Deck was an escape or security threat, while
here the trial court specifically related the shackling to the fact that Watts was a security threat.
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In this case, the California Court of Appeal applied the requirements of Deck. It held a
hearing before each trial on whether shackles during trial were necessary and made specific
findings that they were necessary because Watts was a security threat. Further, the trial court
gave a limiting instruction to the jury in both cases which specifically admonished the jury to
ignore the shackles, that they must be “absolutely certain that [the shackles] in no way, shape, or
form affects your decisions and your deliberations and your thinking in this case,” and that “you
may not consider it in any way, shape, or form.” Lodged Doc. 4 at 593.
The trial court also admonished the jury after the second trial that the shackles were not
evidence, that they were not to consider the shackles in any way or discuss the shackles during
deliberations, and that they could not speculate about the shackles. Lodged Doc. 1 at 595;
Lodged Doc. 4, at 1205. Although Watts was convicted of assault, battery, and false
imprisonment, among other things, by that jury, the jury also found him not guilty of forcible
rape and forcible sodomy, the two most serious charges in Watts’ second trial. As Respondent
points out, this fact alone shows that the jury was able to weigh the evidence without prejudice.
See, e.g., United States v. De Cruz, 82 F.3d 856, 863 (9th Cir. 1996) (“The fact that the jury
acquitted defendant of one of the three charges that was presented to them for decision further
indicates a lack of prejudice toward defendant” and “‘is indicative of the jury’s ability to weigh
the evidence without prejudice.’” (quoting United States v. Koon, 34 F.3d 1416, 1446 (9th Cir.
1994))).
Accordingly, Watts is not eligible for relief on his first claim because the decision of the
California Court of Appeal was not “contrary to, or [did not] involve[] an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the United
12

States,” § 2254(d)(1); and, its decision was not “based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding,” § 2254(d)(2).
2. Claim Three: Farretta Motion
In his third claim, Watts argues that the trial court who presided over his superior court
arraignment (in all three cases) on November 7, 2006, committed reversible error by denying his
Faretta motion to represent himself.2 Doc. No. 30 at 22.
a. California Court of Appeal’s Decision
Watts argued to the California Court of Appeal that he made a timely Faretta request to
represent himself at the November 7, 2006, hearing, and that the trial court had no choice other
than to grant the request. People v. Watts, 92 Cal. Rptr. 3d 806 (App. Div. 2009). He further
claimed that only his conduct at trial could serve as the basis to deny his motion, not his conduct
during the preliminary hearings. Id. at 812-813.
In rejecting this argument, the California Court of Appeal noted that the “right to selfrepresentation is unconditional when a defendant makes a reasonably timely request (whereas an
untimely request is subject to the trial court’s discretion based on prescribed factors).” Id. at 813
(citing People v. Windham, 560 P.2d 1187 (1977)). The court noted, however, that the request
“must be unequivocal and must not be an ill-considered decision that is a function of annoyance
or frustration.” Id. (citing People v. Marshall, 931 P.2d 262, 271-72 (1997)). The California
Court of Appeal added: “a defendant requesting the right of self-representation must possess the

2

See Farretta v. California, 422 U.S. 806 (1975) (The Sixth Amendment generally
allows a defendant in a state court criminal proceeding to assert a right to self-representation).
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ability and willingness ‘to abide by rules of procedure and courtroom protocol.’” Id. (quoting
McKaskle v. Wiggins, 465 U.S. 168, 173 (1984)).
Applying that law to Watts, the Court of Appeal noted that his conduct was “relevant”
because “before trial [Watts] continuously manifested an inability to conform his conduct to
procedural rules and courtroom protocol,” and that it “would be a nonsensical and needless waste
of scarce judicial resources to proceed to trial when, as here, [Watts] has shown by his conduct
during pretrial proceedings that he is unable to conform to procedural rules and protocol.” Id. at
813. Moreover, the Court explained that during the hearings leading up to the November 7,
2006, hearing at issue, Watts “repeatedly requested to represent himself whenever Judge Kaster
did not rule as he desired,” but “would then withdraw the request once the heat of the moment
passed.” Id.
The court added that since that hearing, Watts showed no interest in renewing his request
to represent himself, making it “questionable whether [his] request on November 7 was
unequivocal and not a function of pique.” Id. at 814. In any event, the court concluded that
“there was a proper basis to deny his Faretta request” because Watts had “demonstrated his
inability to conform his behavior to the rules of procedure and courtroom protocol” and was
“unable to control himself even when acting under the guidance of counsel.” Id.
b. Analysis
In his Amended Petition currently before this Court, Watts makes the same argument he
made on appeal to the California Court of Appeal and the California Supreme Court. Federal
law and Supreme Court precedent are almost identical to the California law the California Court
of Appeal applied in denying this claim on direct appeal. The California Court of Appeal even
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cited two of the Supreme Court cases applicable to this Court’s federal habeas review on this
issue, Faretta v. California, 422 U.S. 806 (1975),and McKaskle v. Wiggins, 465 U.S. 168 (1984).
See Watts, 92 Cal. Rprt. 3d at 813 (citing Faretta and McKaskle).
Under Faretta, the Supreme Court held that a defendant in a state-criminal proceeding is
entitled to assert a right of self-representation. 422 U.S. at 834-835. The Supreme Court has
stated, however, that “[a]s the Faretta opinion recognized, the right to self-representation is not
absolute,” and even “at the trial level . . . the government’s interest in ensuring the integrity and
efficiency of the trial at times outweighs the defendant’s interest in acting as his own lawyer.”
Martinez v. Court of Appeal of California, Fourth Appellate Dist., 528 U.S. 152, 161-62 (2000).
Moreover, the Supreme Court has recognized that the a defendant’s Sixth Amendment right to
conduct his or her own defense must involve a knowing and intelligent waiver of the right to
counsel and the defendant’s willingness and ability “to abide by rules of procedure and
courtroom protocol.” McKaskle, 465 U.S. at 173.
Here, the California Court of Appeal reasonably concluded that based on Watts’ behavior
leading up to the November 7 hearing, he would have been unable to abide by the court’s “rules
of procedure” and “protocol.” Id. The law applied by the California Court of Appeal mirrors
Supreme Court precedent on the issue. Accordingly, the California Court of Appeal’s decision to
affirm the trial court’s denial of Watts’ Faretta motion was not “contrary to,” and did not involve
“an unreasonable application of, clearly established Federal law, as determined by the Supreme
Court of the United States,” § 2254(d)(1); and, its decision was also not “based on an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding,” § 2254(d)(2). Watts is not entitled to relief under his third ground.
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3. Claim Six: Prosecutorial Misconduct Claims Not Procedurally Defaulted
The California Court of Appeal addressed and rejected three of Watts’ claims of
prosecutorial misconduct on the merits, including: (1) the prosecution’s use of a detective’s
opinion testimony at trial where the detective stated that at the crime scene the victim was
allowed to shower, that Watts wanted to know why the victim was allowed to shower, and that
over defense counsel’s objection the detective was allowed to give his opinion at trial as to why
Watts asked this question; (2) the prosecutor’s question concerning Watts’ statement that an
examination of the victim would not reveal any of his DNA unless the victim had not showered
since Watts claimed he had sex with the victim a few days earlier, where the prosecution
characterized Watts’ statement as an excuse; and (3) Watts’ claim that the trial court’s instruction
to the jury to disregard a deputy’s statement at trial was insufficient to cure the taint of the
statement which implied that because Watts’ immediately invoked his right to an attorney at the
crime scene, he must have been guilty. Lodge Doc. 11, at 35-38.
a. California Court of Appeal’s Decision
In rejecting these claims that were preserved for appeal, the Court stated that a prosecutor
“commits misconduct under state law through a resort to deceptive or reprehensible tactics
designed to sway the verdict for the finder of fact,” and that “this rises to a violation of the
federal constitution where the prosecution’s actions permeate the proceedings with ‘a degree of
unfairness’ that renders them a deprivation of due process.” Lodged Doc. 11 at 25 (citing People
v. Penah, 107 P.3d 790, 834 (Cal. 2005)). The California Court of Appeals rejected the
additional claims on the merits, noting that none of the claims met the standard for prosecutorial
misconduct.
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Concerning Watts’ claim about the detectives opinion as to why Watts asked why the
victim was allowed to shower, the court simply noted that the showering testimony “did not
remotely come under any guise of the detective’s expertise” and “[w]e therefore reject this
misconduct claim.” Lodged Doc. 11 at 36. Regarding the claim where the prosecution
characterized Watts’ statement about the victim showering and any possible DNA evidence from
an examination as an excuse, the Court stated:
[Watts’] claim of error rests on his assertion that the detective ‘implicitly adopted’
the argumentative characterization in the prosecutor’s questions. We disagree with
this effort to fashion error. The jury was aware that the questions of counsel are not
evidence of any sort and only reflect the prosecution’s point of view. The jury was
perfectly capable of assessing the defendant’s statements for itself and to attribute to
them whatever probative value they possessed.
Id.
Finally, concerning Watts’ last claim of prosecutorial misconduct preserved for appeal,
the court stated that Watts was basically arguing the deputy’s testimony that was stricken from
the record violated his right to an attorney, but that even acknowledging that “it is difficult to
remove” the taint caused by a stricken statement from the jury “even through admonishment,”
Watts failed to “acknowledge the presumption essential to the system of trial by jury of the
effectiveness of admonitions, except where evidence is incurably inflammatory or devastating.”
Id. at 38 (internal quotation marks and citation omitted). The court also noted that “an
admonition will generally cure a violation that is fairly innocuous,” id. (internal quotation marks
and citation omitted), and that the “present case involve[d] just such a fairly innocuous violation
(if a violation it be), id. The court concluded that “the request for counsel in the course of an
arrest does not lead irretrievable to imputing a guilty conscious to [Watts].” Id. Accordingly, the
California Court of Appeal rejected this claim of prosecutorial misconduct.
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b. Analysis
Under current law as interpreted by the Supreme Court in this context, “[t]o warrant
habeas relief, prosecutorial misconduct must ‘so infect the trial with unfairness as to make the
resulting conviction a denial of due process.’” Davis v. Woodford, 384 F.3d 628, 644 (9th Cir.
2004) (quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986)).
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 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.
Hein v. Sullivan, 601 F.3d 897, 912-13 (9th Cir. 2010); see Darden, 477 U.S. at 182.
In essence, what is required is that reviewing courts consider the equivalent to evaluating
whether there was a “reasonable probability” of a different result. See Hein, 601 F.3d at 914-15.
“[I]t is not enough that the prosecutor’s remarks were undesirable or even universally
condemned.” Darden, 477 U.S. at 181 (citations and internal quotation marked omitted). “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.’” Id.
The California Court of Appeal reasonably concluded that the prosecutorial misconduct
claims that were not waived on appeal were without merit. The court applied a standard almost
identical to the federal standard for prosecutorial misconduct. Having reviewed the prosecutorial
misconduct claims that the California Court of Appeal rejected on the merits, this Court agrees
that these claims are meritless. Accordingly, the California Court of Appeal’s decision was not
“contrary to,” and did not involve “an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States,” § 2254(d)(1); and, its decision
18

was also not “based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding,” § 2254(d)(2). Watts is not entitled to relief on his
prosecutorial misconduct claims (claim six) that were preserved for direct appeal and not
procedurally defaulted.
V. CONCLUSION AND ORDER
Watts is not entitled to relief on any ground raised in his Petition.
IT IS THEREFORE ORDERED THAT the Petition under 28 U.S.C. § 2254 for Writ
of Habeas Corpus is DENIED.
IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of
Appealability.3 Any further request for a Certificate of Appealability must be addressed to the
Court of Appeals.4
The Clerk of the Court is to enter judgment accordingly.
Dated: February 8, 2013.
/s/ James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
United States District Judge

3

28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S. 668, 705 (2004) (“To obtain a certificate
of appealability a prisoner must ‘demonstrat[e] that jurists of reason could disagree with the
district court’s resolution of his constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed further.’” (quoting Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003))).
4

See Fed. R. App. P. 22(b); Ninth Circuit R. 22-1.
19