Scott v. Scribner
Filing
28
MEMORANDUM DECISION signed by Senior Judge James K. Singleton on 3/1/12 DENYING 1 Petition for writ of Habeas Corpus. It is further ORDERED that the court DECLINES to issue a Certificate of Appealability. CASE CLOSED. (Donati, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
TIANTE DION SCOTT,
No. 2:10-cv-01220-JKS
Petitioner,
MEMORANDUM DECISION
vs.
L. E. SCRIBNER, Warden, Calipatria State
Prison,
Respondent.
Tiante Dion Scott, a state prisoner appearing pro se, filed a Petition for Habeas Corpus
under 28 U.S.C. § 2254. Scott is currently in the custody of the California Department of
Corrections, incarcerated at the Calipatria State Prison. Respondent has answered, and Scott has
replied. Scott has also requested an evidentiary hearing.
I. BACKGROUND/PRIOR PROCEEDINGS
Following a jury trial in the Sacramento County Superior Court, Scott was convicted in
December 2006 of four counts of Robbery in the First Degree in concert, Cal. Penal Code
§§ 211, 213(a)(1)(A), sustained allegations of personal use of a firearm, Cal. Penal Code
§ 12022.53(b), and was also convicted of one count of being a Felon in Possession of a Firearm,
Cal. Penal Code § 12021(a)(1). Scott also admitted a prior prison term, Cal. Penal Code §
667.5(b). The trial court sentenced Scott to an aggregate prison term of thirty-six years. The
California Court of Appeal, Third Appellate District, affirmed Scott’s conviction and sentence in
an unpublished decision,1 and the California Supreme Court summarily denied review without
1
People v. Heng [Scott], No. C054315, 2008 WL 2721718 (Cal. Ct. App. Jul. 14, 2008).
opinion or citation to authority on September 24, 2008. On April 10, 2009, Scott filed a petition
for habeas relief in the Sacramento County Superior Court (“Superior Court”), which was denied
in an unreported, reasoned decision.2 The California Court of Appeal summarily denied Scott’s
subsequent petition for habeas relief without opinion or citation to authority, and the California
Supreme Court summarily denied Scott’s petition for habeas relief on January 21, 2010. Scott
timely filed his Petition for relief in this Court on May 10, 2010.
The facts underlying Scott’s conviction as summarized by the California Court of Appeal:
On April 24, 2006, Canh Van Le, age 78; his 72-year-old wife Nhan Dang;
their 32-year-old son Huyen Le; and their 20-year-old granddaughter (Huyen’s niece)
Truc Anh Le lived together in a South Sacramento residence. The doorbell rang after
1:00 p.m. and Nhan answered to find a young Black man asking her questions. She
did not speak English, so Nhan asked her granddaughter Truc for help.
Truc, who understood only a little English, went upstairs to get her Englishspeaking Uncle Huyen, but noticed she was being followed by a man with a gun.
Two Black men and one Hispanic man had pushed the door open and entered the
house. The victims described one of the Black robbers as short and thin while the
other as big and tall. In a field identification, Truc and Huyen identified Scott as the
large Black robber and Heng as the Hispanic robber. Morris is five feet five inches
tall and weighed 132 pounds while Scott is five feet 10 inches tall and weighed 235
pounds. While neither Truc nor Huyen could identify Morris in a field identification,
at trial all four of the victims identified the defendants as the robbers.
Truc knocked on the door of Huyen’s upstairs bedroom and told him robbers
were in the house. Huyen opened the door to let her enter and call 911. He closed
the door, but Morris and Scott broke the door down and entered the room. Scott and
Morris, both armed, told Truc to put the phone down. Scott eventually left the room
to check the rest of the upstairs.
Morris remained in the room and pointed a gun at Huyen’s head. Canh
entered and threw himself on Huyen to keep his son from being shot. Huyen, Canh,
and Truc were taken downstairs to join Nhan.
All four victims were tied up and made to lie face down next to each other.
Heng took a pistol from Morris and questioned Huyen about whether there was any
money in the house. When Huyen replied they had no money Heng said, “You Asian
punk, you know we hear—somebody told us you have the money. That’s why—what
2
Docket No. 8 at 156-61.
2
we come here for. And if you don’t tell me the money, I’m gonna kill your dad, your
mom and I gonna rape your niece. Is that what you want?” (Sic.)
Huyen pleaded with Heng. Heng asked Huyen who owned the car parked in
front of the house. Huyen lied, telling Heng it was his brother’s car, and that he had
no wallet, having left it in his car. Heng hit Huyen in the head three times with the
gun, asking him where the money was between strikes. Heng then did the same to
Huyen’s elderly parents, repeatedly striking them in the head with his gun, each time
asking Huyen to look at the firearm before he struck them.
Heng told Huyen he was going to rape Truc “right now” and took off his shirt.
He chambered a bullet from the magazine by pulling the slide back, put the gun to
Truc’s head, telling her, “Do you feel it?” and then slowly moved the weapon down
her back and to her buttocks.
Fortunately, the robbers had left their stolen SUV running in front of the
house. Sacramento police officers were dispatched to the home to investigate the
suspicious vehicle. Before Heng could do anything more to Truc, one of the other
robbers exclaimed from upstairs, “Hey, there are cops outside. There are police
outside,” which caused all of the robbers to run out of the house.
Heng was apprehended by the police officers as he tried to leave through the
back door. Morris and Scott fled by jumping to the roof of the house next door
before going back to the ground, where they were chased by the police on foot and
separately caught.
The robbers took credit cards and $1,500 in cash belonging to Canh and
Nhan. Canh kept these in a suitcase reserved for special documents hidden in his
bedroom closet. The money was for the rent on the family’s house.
Officers found a nine-millimeter Beretta semiautomatic handgun and a BB
gun at the residence. Cash in the amount of $950 was found on Scott. The stolen
credit cards were found on Morris. The money was folded in $100 increments, just
as Canh does.3
II. GROUNDS RAISED/DEFENSES
In his Petition, Scott raises eleven enumerated grounds: (1) a violation of his right against
self-incrimination under the Fifth Amendment; (2) a denial of transcripts in violation of his right
to present a defense; (3) insufficiency of the evidence to support the personal use of a firearm
allegation, Cal. Penal Code § 12022.53(b); (4) prosecutorial misconduct and overreaching; (5)
insufficiency of the evidence to convict Scott on two of the robbery counts; (6) application of
3
Heng, 2008 WL 2721718 at *1-2.
3
Penal Code §§ 654 and 664 violated the Due Process and Equal Protection Clauses; (7)
ineffective assistance of trial counsel; (8) the pretrial and trial judges collectively abridged
Scott’s rights under the Fifth, Sixth, and Fourteenth Amendments; (9) the imposition of
restitution was established without a hearing; (10) ineffective assistance of appellate counsel; and
(11) the failure to sever his trial from that of his co-defendants denied Scott his rights under the
Fifth and Fourteenth Amendments. Respondent contends that Scott’s first, third, fourth, sixth,
seventh, eighth, ninth, tenth, and eleventh grounds are all procedurally barred. Respondent does
not assert any other affirmative defense.4
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.”5 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.”6 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
4
Rules Governing Section 2254 Cases in the U.S. Dist. Courts, Rule 5(b) (2011).
5
28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 402-06 (2000); see also Lockyer
v. Andrade, 538 U.S. 63, 70-75 (2003) (explaining this standard).
6
Williams, 529 U.S. at 412 (alteration added).
4
power of the Supreme Court over federal courts.7 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.’”8 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.”9 The Supreme Court has made
clear that the objectively unreasonable standard is “a substantially higher threshold” than simply
believing that the state-court determination was incorrect.10 “[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.’”11 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.12 Because state court judgments of
7
Early v. Packer, 537 U.S. 3, 10 (2002).
8
Carey v. Musladin, 549 U.S. 70, 77 (2006) (alterations in original) (citation omitted);
see also Wright v. Van Patten, 552 U.S. 120, 126 (2008) (per curiam); Kessee v. MendozaPowers, 574 F.3d 675, 678-79 (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).
9
Wiggins v. Smith, 539 U.S. 510, 520-21 (2003) (internal quotation marks and citations
omitted).
10
Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410).
11
Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (quoting Donnelly v. DeChristoforo, 416
U.S. 637, 642, 643 (1974)).
12
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)).
5
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.13
The Supreme Court recently underscored the magnitude of the deference required:
As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal
court relitigation of claims already rejected in state proceedings. Cf. Felker v.
Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (discussing
AEDPA’s “modified res judicata rule” under § 2244). It preserves authority to issue
the writ in cases where there is no possibility fairminded jurists could disagree that
the state court’s decision conflicts with this Court’s precedents. It goes no farther.
Section 2254(d) reflects the view that habeas corpus is a “guard against extreme
malfunctions in the state criminal justice systems,” not a substitute for ordinary error
correction through appeal. Jackson v. Virginia, 443 U.S. 307, 332, n.5, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment). As a condition
for obtaining habeas corpus from a federal court, a state prisoner must show that the
state court’s ruling on the claim being presented in federal court was so lacking in
justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.14
In applying this standard, this Court reviews the “last reasoned decision” by the state
court.15 State appellate court decisions that summarily affirm a lower court’s opinion without
explanation are presumed to have adopted the reasoning of the lower court.16 This Court gives
13
Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) (citations omitted); 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”).
14
Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011) (emphasis added).
15
Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004) (citing Avila v. Galaza, 297
F.3d 911, 918 (9th Cir. 2002)); cf. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991) (explaining
“how federal courts in habeas proceedings are to determine whether an unexplained order . . .
rests primarily on federal law,” and noting that federal courts must start by examining “the last
reasoned opinion on the claim . . . . ”).
16
Ylst, 501 U.S. at 802-03 (“Where there has been one reasoned state judgment rejecting
a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest
upon the same ground.”); cf. Richter, 131 S. Ct. at 784 (“As every Court of Appeals to consider
the issue has recognized, determining whether a states court’s decision resulted from an
(continued...)
6
the presumed decision of the state court the same AEDPA deference that it would give a
reasoned decision of the state court.17
Under California’s unique habeas procedure, a prisoner who is denied habeas relief in the
superior court files a new 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.18
This is considered as the functional equivalent of the appeal process.19 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.20 This presumption applies to state-trial courts and appellate
courts alike.21
16
(...continued)
unreasonable legal or factual conclusion does not require that there be an opinion from the state
court explaining the state court’s reasoning.”).
17
See Richter, 131 S. Ct. at 784-85 (rejecting the argument that a summary disposition
was not entitled to § 2254(d) deference).
18
See Carey v. Saffold, 536 U.S. 214, 221-22 (2002) (citations omitted) (discussing
California’s “original writ” system).
19
See id. at 222 (“Thus, typically a prisoner will seek habeas review in a lower court and
later seek appellate review in a higher court . . . .”).
20
28 U.S.C. § 2254(e)(1); see also Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)
(“Factual determinations by state courts are presumed correct absent clear and convincing
evidence to the contrary . . . .” (citing 28 U.S.C. § 2254(e)(1))).
21
See Stevenson v. Lewis, 384 F.3d 1069, 1072 (9th Cir. 2004) (“Stevenson does not
address these factual findings, let alone challenge them with clear and convincing evidence.
Accordingly, we presume them to be correct.” (citing 28 U.S.C. § 2254(e)(1); Pollard v. Galaza,
290 F.3d 1030, 1035 (9th Cir. 2002))).
7
IV. DISCUSSION
Initially this Court notes that on direct appeal Scott raised only his insufficiency of the
evidence claim to support two of the robbery counts claim (ground five). All other claims, to the
extent they were raised in the state courts, were raised in Scott’s habeas petitions filed with the
Superior Court, the California Court of Appeal, and the California Supreme Court. In addressing
the Petition, this Court will address in order: (1) the request for an evidentiary hearing; (2) the
procedural bar defense; and (3) the remaining claims on the merits.
The Petition in this case encompasses 155 pages. This Court notes, as did Respondent,
that under each ground Scott includes a myriad of claims containing a mixture of conclusory and
factual statements, which renders the Petition disorganized, confusing, and difficult to follow. It
appears that, for the most part, although he presents them in a different order, Scott presents his
claims on the same legal and factual bases as he did in the state courts. In some instances,
however, Scott does clearly present his claim in this Court on a different legal and/or factual
footing than he presented the claim in the state courts. This Court may consider only those
claims that have been fairly presented to the state courts.22
In order to exhaust a claim, a petitioner must “fairly present” to the state supreme court
both the legal and factual basis for the claim.23 “[T]he petitioner must . . . provide the state court
with the operative facts, that is, ‘all of the facts necessary to give application to the constitutional
principle upon which [the petitioner] relies.’”24 A petitioner may not fundamentally alter the
22
28 U.S.C. § 2254(b)(1); see Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citing cases).
23
Baldwin, 541 U.S. at 29; Robinson v. Schriro, 595 F.3d 1086, 1101 (9th Cir. 2010).
24
Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir. 2008) (emphasis added) (quoting
(continued...)
8
legal claim already considered by the state courts.25 In the Ninth Circuit, a petitioner must make
the federal basis of the claim explicit either by referencing specific provisions of the federal
Constitution or statutes, or citing to federal case law.26 Mere similarity of claims between a state
law claim and a federal law claim is insufficient for exhaustion purposes.27 In order to present
the substance of a claim to a state court, the petitioner must reference a specific federal
constitutional provision as well as a statement of facts that entitle the petitioner to relief.28 A
mere appeal to a broad constitutional guarantee, e.g., due process, is insufficient to present the
substance of a constitutional claim to the state courts.29 A petitioner who cites one clause of a
constitutional amendment does not exhaust a claim under a different clause of the same
constitutional amendment.30 In appropriate circumstances this Court may raise the failure to
properly exhaust claims sua sponte, provided nothing in the record suggests that the state either
strategically withheld the defense or chose to relinquish it.31 This case presents a situation where
it is appropriate to raise the failure to exhaust available state-court remedies sua sponte.
24
(...continued)
Daugharty v. Gladden, 257 F.2d 750, 758 (9th Cir. 1958)); see Anderson v. Harless, 459 U.S. 4,
6 (1982) (same).
25
Beaty v. Stewart, 303 F.3d 975, 989-90 (9th Cir. 2002) (citing Vasquez v. Hillery, 474
U.S. 254, 260 (1986)).
26
Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir. 2000), amended and superseded by
Lyons v. Crawford, 247 F.3d 904 (9th Cir. 2001).
27
Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996).
28
Gray v. Netherland, 518 U.S. 152, 162-163 (1996).
29
See id. at 163; Harless, 459 U.S. at 7.
30
Picard v. Connor, 404 U.S. 270, 276-277 (1971).
31
See Day v. McDonough, 547 U.S. 198, 206-11 (2006); but see Bennett v. Mueller, 322
F.3d 573, 585 (9th Cir. 2003) (a failure to raise an affirmative defense constitutes a waiver).
9
Therefore, this Court will consider claims only to the extent that those claims were first
presented to the state courts on the same or substantially the same constitutional theories and
facts. This Court will not compare the 155 pages of the Petition in this Court with the 144 pages
of the habeas petition filed in the California Supreme Court to determine if there are some
additional facts or theories presented in this Court that would warrant granting relief. This Court
will decide the case on the facts and legal theories presented to the state courts.
A.
Evidentiary Hearing
Scott has requested an evidentiary hearing. 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.32
It does not appear that Scott was afforded an evidentiary hearing in any state court, and no
decision of a California Court addresses the request. Scott did include in the captions of his
habeas petitions in the state courts the statement “Evidentiary Hearing Requested.” Nowhere in
his petitions to the state courts, however, does Scott identify what evidence might be adduced in
an evidentiary hearing, what those facts might prove, or even what factual issues are in dispute.
His request for an evidentiary hearing before this Court suffers from the same problem. Under
both California and Federal procedural rules an evidentiary hearing is not required in a habeas
32
Cullen v. Pinholster, 131 S. Ct. 1388, 1398-99 (2011); see 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).
10
proceeding in the absence of any disputed objective facts.33 Scott’s request for an evidentiary
hearing is DENIED.
B.
Procedural Bar
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.”34 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 . . . .”35 Procedural default does not preclude federal habeas
review unless the last state court rendering judgment in a case clearly and expressly states that its
judgment rests on a state procedural bar.36 “[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.”37 A
discretionary state procedural rule can be firmly established and regularly followed, so as to bar
federal habeas review, even if the appropriate exercise of discretion may permit consideration of
a federal claim in some cases but not others.38
33
Williams v. Calderon, 52 F.3d 1465, 1484 (9th Cir. 1995) (citing Hendricks v. Vasquez,
974 F.2d 1099, 1103 (9th Cir. 1992)); In re Cordero, 756 P.2d 1370, 1375 n.1 (Cal. 1988).
34
Coleman v. Thompson, 501 U.S. 722, 729 (1991).
35
Sawyer v. Whitley, 505 U.S. 333, 338 (1992).
36
Teague v. Lane, 489 U.S. 288, 298-99 (1989) (citing Harris v. Reed, 489 U.S. 255,
262-63 (1989)).
37
Morales v. Calderon, 85 F.3d 1387, 1393 (9th Cir. 1996) (internal quotation marks and
citation omitted).
38
Walker v. Martin, 131 S. Ct. 1120, 1128 (2011); Beard v. Kindler, 130 S. Ct. 612, 618
(continued...)
11
To the extent that Scott’s claims were defaulted in state court on an adequate and
independent state ground, they will not be considered in federal habeas proceedings unless Scott
can demonstrate cause for the default and actual prejudice.39 To prove a fundamental miscarriage
of justice, Scott must show that a constitutional violation probably resulted in his conviction
despite his actual innocence.40 Although at the gateway stage the petitioner need not establish his
innocence as an “absolute certainty,” Scott must demonstrate that more likely than not, no
reasonable juror could find him guilty beyond a reasonable doubt.41
If a petitioner has procedurally defaulted on a claim, a federal court may
nonetheless consider the claim if he shows: (1) good cause for his failure to exhaust
the claim; and (2) prejudice from the purported constitutional violation; or (3)
demonstrates that not hearing the claim would result in a “fundamental miscarriage
of justice.” Coleman, 501 U.S. at 750, 111 S.Ct. 2546; Sawyer v. Whitley, 505 U.S.
333, 339–40, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). An objective factor outside
of a petitioner’s control (e.g., ineffective assistance of counsel or a basis for the claim
that was previously unavailable) could constitute cause. Murray v. Carrier, 477 U.S.
478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); McCleskey v. Zant, 499 U.S. 467,
497, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). The petitioner can meet the prejudice
prong if he demonstrates “that the errors . . . worked to his actual and substantial
disadvantage, infecting his entire [proceeding] with errors of constitutional
dimension.” White v. Lewis, 874 F.2d 599, 603 (9th Cir.1989) (citing United States
v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)). A petitioner
can demonstrate a fundamental miscarriage of justice by “establish[ing] that under
38
(...continued)
(2009).
39
See Coleman, 501 U.S. at 729.
40
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.”);
Murray v. Carrier, 477 U.S. 478, 496 (1986) (“In an extraordinary case, where a constitutional
violation has probably resulted in the conviction of one who is actually innocent, a federal habeas
court may grant the writ even in the absence of a showing of cause for the procedural default.”).
41
House v. Bell, 547 U.S. 518, 538 (2006).
12
the probative evidence he has a colorable claim of factual innocence.” Sawyer, 505
U.S. at 339, 112 S.Ct. 2514 (quotation marks omitted).42
Respondent raises the procedural bar defense to those claims that were presented in
Scott’s state habeas petitions. Respondent provides a comprehensive review of the California
law with respect to habeas proceedings. Unfortunately, most of the law discussed by Respondent
is inapplicable to this case for the simple reason that the Sacramento County Superior Court, the
last reasoned state-court decision, did not expressly rely on those grounds. Accordingly, this
Court will address procedural bar solely with respect to those grounds expressly relied upon by
the Superior Court.
It is firmly established under California law that “habeas corpus will not lie as a substitute
for appeal . . . nor as a second appeal.”43 Contentions that could have been raised during direct
appeal, but were not, generally cannot be renewed in a petition for habeas corpus.44 As discussed
further below, the Superior Court expressly relied upon this ground in rejecting the claim Scott
makes in his third ground.
As to the other claims presented in the state habeas petition, the Superior Court simply
stated that those claims were barred by “Robbins/Clark” without further citation,45 explanation,
or analysis. The reference to Robbins and Clark is generally considered as noting that the
42
Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011) (alterations in original).
43
In re Harris, 855 P.2d 391, 396 (Cal. 1993) (citing In re Foss, 519 P.2d 1073 (Cal.
1974); In re Terry, 484 P.2d 1375 (Cal. 1971); In re Waltreus, 397 P.2d 1001 (Cal. 1965); In re
Spears, 204 Cal. Rptr. 333 (Ct. App. 1984); In re Wagner, 173 Cal. Rptr. 766 (Ct. App. 1981)).
44
Ex parte Dixon, 264 P.2d 513, 514 (Cal. 1953).
45
This Court assumes that the Sacramento County Superior Court was referring to In re
Robbins, 959 P.2d 311 (Cal. 1998) and In re Clark, 855 P.2d 729 (Cal. 1993).
13
petition is untimely,46 and is an adequate and independent state procedural ground.47 That,
however, does not necessarily control here. “A procedural default based upon an ambiguous
order that does not clearly rest on independent and adequate state grounds is not sufficient to
preclude federal collateral review.”48 Nowhere in the decision does the Superior Court discuss
the timeliness of Scott’s habeas petition. Here the state habeas petition was filed less than two
and a half years after the trial and less than six months after the California Supreme Court denied
review on direct appeal. The response contains a glaring omission, i.e., that the delay in bringing
his state habeas petition was somehow unreasonable under California law. Indeed, taken in
context, it appears that the Superior Court mis-spoke, intending to cite Harris/Dixon (failure to
raise a claim on appeal) instead of untimeliness under Robbins/Clark. Given the ambiguity in the
decision of the Superior Court, this Court declines to find that to the extent the Superior Court
cited “Robbins/Clark” as a basis for denying relief, that it constitutes a procedural bar to review
by this Court in a federal habeas proceeding. Therefore, Respondent’s procedural bar defense is
rejected as to the first, second, fourth, sixth, seventh, eighth, ninth, tenth, and eleventh grounds.
Ground 3: Insufficiency of the Evidence (Personal Use of a Firearm)
Scott argues that the use of a firearm allegation was not proven beyond a reasonable
doubt. The Superior Court rejected Scott’s arguments, holding:
46
See, e.g., Walker v. Martin, 131 S. Ct. 1120, 1127-30 (2011); Catlin v. Superior Court,
245 P.3d 860, 864-65 (Cal. 2011); In re Espinoza, 120 Cal. Rptr. 3d 849, 852-53 (Ct. App.
2011).
47
Martin, 131 S. Ct. at 1128, abrogating Townsend v. Knowles, 562 F.3d 1200 (9th Cir.
2009).
48
Valerio v. Crawford, 306 F.3d 742, 774 (9th Cir. 2002) (en banc) (quoting Morales v.
Calderon, 85 F.3d 1387, 1392 (9th Cir. 1996)) (internal quotation marks omitted).
14
[Scott] first claims that the Penal Code § 12022.53(b) firearm allegations
were not proven true beyond a reasonable doubt because the prosecutor in closing
argument confused the jury by arguing that [Scott] possessed a handgun the minute
he walked through the door regardless of whether he actually used a firearm later,
which he very well may have done, and in other argument made in closing by the
prosecutor.
The claim could have been but was not raised on appeal, thus is procedurally
barred on state habeas corpus (In re Dixon (1953) 41 Cal.2d 756, reaffirmed in In re
Harris (1993) 5 Cal. 4th 813, 829). The only exceptions to this procedural bar are:
(1) if the claim is based on constitutional error that is both clear and fundamental, and
that strikes at the heart of the trial process; (2) if the claim is now couched in
ineffective assistance of counsel terms; (3) if the court lacked fundamental
jurisdiction over the petitioner or the subject matter; (4) if the court acted in excess
of its jurisdiction and the issue is strictly a legal one not requiring a redetermination
of the facts underlying the claim; (5) there has been a change in the law affecting the
petitioner (Harris, supra, 5 Cal. 4th 813, 834, 834 fn. 8, 836, 840-841, 841; In re
Antazo (1970) 3 Ca1.3d 100, 108 [exceptions to Dixon rule are same as those to
Waltreus rule]); or (6) if the claim is that the sentence is unauthorized, as an
unauthorized sentence may be corrected at any time (People v. Welch (1993) 5 Cal.
4th 228; Harris, supra, 5 Cal. 4th 813, 842; People v. Serrato (1973) 9 Cal.3d 753,
763, overruled on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583
fn. 1).
First, the trial court had instructed the jurors that nothing the attorneys say is
evidence, that only the witnesses’ answers are evidence, and that the jurors should
not assume that something is true just because one of the attorneys asks a question
that suggests it is true. It is presumed that the jurors followed this instruction (see
People v. Jablonski (2006) 37 Cal.4th 774, 834).
Regardless, the evidence was sufficient to support the verdict, as the victims
testified seeing the large black robber, whom they identified in a field identification
as [Scott], holding and using a gun throughout the course of conduct. One witness
testified that the big black guy, who was [Scott], held a gun against the witness’s
back when the witness was going down the stairs. Penal Code § 12022.53(b) does
not require gun use throughout the entire course of conduct but only at any point in
time throughout the course of conduct, thus this testimony alone was sufficient to
support the true findings of Penal Code § 12022.53(b) personal gun use by [Scott].49
Although the ultimate burden of proving adequacy of a state-procedural bar is on the
government, once it has “adequately pled the existence of an independent and adequate state
procedural ground as an affirmative defense, the burden to place that defense in issue shifts to the
49
Docket No. 8 at 156-57.
15
petitioner.”50 The petitioner may satisfy his burden “by asserting specific factual allegations that
demonstrate the inadequacy of the state procedure, including citation to authority demonstrating
inconsistent application of the rule.”51 Scott has not made any attempt to meet this burden.
Even if this Court were to reach the merits, Scott would not prevail for the same reasons
that Scott does not prevail on his fifth ground, discussed below. It follows, a fortiori, that Scott
could not establish his “actual innocence.” Scott is procedurally barred from raising his third
ground, and is not entitled to relief under that ground in any event.
C.
Merits
Ground 1: Violation of Right Against Self-Incrimination
In this case, Scott was charged with being a felon in possession of a firearm. An essential
element of that crime is that Scott must have a prior felony conviction. During his summation
the prosecutor referred to Scott’s prior conviction. With respect to Count Nine, the felon in
possession of a firearm, the prosecutor referred to California Department of Corrections abstracts
that had been introduced into evidence to establish the fact that Scott was a felon and later
referred to his status as such in arguing that the evidence established Scott’s guilt on that count.52
Scott contends that this violated his rights under the Fifth, Sixth, and Fourteenth Amendments.
Scott raised this issue at two points in his state habeas petitions, as part of his prosecutorial
misconduct claim and also his claim that the trial judges collectively abridged his Fifth, Sixth,
50
Bennett v. Mueller, 322 F.3d 573, 586 (9th Cir. 2003); see Jackson v. Roe, 425 F.3d
654, 656 n.2 (9th Cir. 2005) (noting the burden-shifting test and directing the district court to
apply it on remand in that case).
51
Bennett, 322 F.3d at 576.
52
Docket No. 8-1 at 161-62, 171, 177-78.
16
and Fourteenth Amendment rights. The Superior Court rejected his prosecutorial misconduct
claim, stating: “The prosecutor was entitled to argue about the prior conviction, which was an
element of the charged Penal Code § 12021(a) offense.”53 The sole federal constitutional
argument raised is that this somehow violated his Fifth Amendment right not to incriminate
himself. Scott argues in part that because he did not contest his prior conviction and the trial
court ordered it not to be revealed to the jury, it should not have been revealed to the jury until
after he had been convicted on the robbery charges. Yet, the record belies the claim that Scott
did not contest his status as a felon or that the trial court ordered it not to be revealed to the jury.
The excerpt of the record cited by Scott provides:
THE COURT: Okay. And then the issue outstanding was Count 9 regarding
Mr. Scott’s 12021:
During jury selection, I asked for a sidebar conference regarding whether I
should inform the jury that Mr. Scott had been previously convicted of a felony. The
response from Mr. Leighton was that Mr. Scott was not gonna stipulate to his prior
convictions, that I could inform the jury of that information.
So, Mr. Leighton, in terms of Count 9, what is your position regarding the
jury being informed of that count in its entirety?
That is the 12021, plus the allegation of two prior convictions, as indicated
in the Information.
MR. LEIGHTON: We would move to bifurcate that, Your Honor.
THE COURT: The two prior convictions?
MR. LEIGHTON: Yes, Your Honor.
THE COURT: Okay. Well, there’s two issues there:
In the 12021, I don’t believe bifurcation is possible, because that is an
element that the prosecution has to prove.
MR. LEIGHTON: Okay.
THE COURT: So as to Count 9, that should be read in its entirety.54
53
Docket No. 8 at 158.
54
Docket 8-1 at 21-22.
17
The admission of evidence of a prior conviction is an evidentiary question. The fact that
Scott was a convicted felon was relevant to the felon-in-possession charge and its probative value
with relation thereto clearly outweighed its prejudicial effect. Had Scott wished to keep that fact
away from the jury he could have stipulated to the prior conviction.55 Instead, Scott chose to
contest the point and cannot now be heard to complain of the potential adverse effect contesting
the element might have had.
Although it is not entirely clear, Scott appears to argue in part that his prior conviction
was used to establish that he was guilty of robbery, i.e., that he had a propensity to commit
crimes. The fatal flaw in Scott’s argument, however, is that no court, including the Supreme
Court, has ever held that the introduction of propensity evidence is per se prohibited by the
Constitution. It is purely and simply a rule of evidence, not a rule of constitutional law. Thus,
because the Supreme Court has not ruled on the question of whether propensity evidence violates
the Due Process Clause,56 admission of this evidence was not contrary to, nor an unreasonable
55
See Old Chief v. United States, 519 U.S. 172 (1997), in which the Supreme Court,
discussing the balancing between Federal Rules of Evidence 403 and 404, held that a district
court abuses its discretion when it spurns a defendant’s offer to admit to evidence of a prior
conviction as an element of an offense and instead admits the full record of the prior judgment of
conviction when the name or nature of the prior offense raises the risk of a verdict. Even if this
case were implicated, it would not support granting relief because in Old Chief the Supreme
Court was interpreting the Federal Rules of Evidence and thus was acting in its supervisory
capacity over the lower federal courts. Smith v. Philips, 455 U.S. 209, 221 (1982) (“Federal
courts hold no supervisory authority over state judicial proceedings and may intervene only to
correct wrongs of constitutional dimension.” (citations omitted)); see also Sanchez-Llamas v.
Oregon, 548 U.S. 331, 345 (2006) (“It is beyond dispute that we do not hold a supervisory power
over the courts of the several states.” (quoting Dickerson v. United States, 530 U.S. 428, 438
(2000))).
56
See Estelle v. McGuire, 502 U.S. 62, 75 n.5 (1991) (“[W]e express no opinion on
whether a state law would violate the Due Process Clause if it permitted the use of ‘prior crimes’
(continued...)
18
application of, clearly established federal law.57 Scott is not entitled to relief under his first
ground.
Ground 2: Failure to Provide a Copy of Transcripts
Scott contends that the Superior Court denied him transcripts he contended were
necessary for him to properly and adequately prepare his motions for a mistrial and a new trial.
Scott argues that this prevented him from presenting a defense. The Superior Court rejected
Scott’s argument holding:
[Scott] claims ineffective assistance of counsel in failing to file mistrial and
new trial motions. [Scott] does admit that his own new trial motion was considered
by the court. [Scott] then changes his argument, to that of error in not providing him
with transcripts to support his new trial motion. [Scott], however, admits that the
court found [Scott’s] claims to be without foundation, and does not now show
otherwise.58
Scott relies on authorities for the proposition that, as an indigent person, he is entitled to a
free transcript on appeal under the Fourteenth Amendment. Scott cites no authority for the
proposition that a defendant has a constitutional right to a free transcript during trial or to prepare
a motion for a new trial or mistrial, and independent research by this Court did not uncover any
56
(...continued)
evidence to show propensity to commit a charged crime.”); Davis v. Grigas, 443 F.3d 1155, 1158
(9th Cir. 2006) (noting that where the Supreme Court has not established clear law, a state
court’s decision cannot be contrary to or an unreasonable application of it under AEDPA); see
also Alberni v. McDaniel, 458 F.3d 860, 863, 867 (9th Cir. 2006) (habeas petitioner’s argument
that use of propensity evidence violated his right to due process fails to meet the AEDPA
threshold).
57
28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 402-06 (2000); see also
Lockyer v. Andrade, 538 U.S. 63, 70-75 (2003) (explaining this standard).
58
Docket No. 8 at 159.
19
such authority. What authority exists is to the contrary.59 In the absence of Supreme Court
authority on the issue, this Court cannot say that the Superior Court unreasonably applied clearly
established federal law as determined by the Supreme Court.60
Just as importantly, despite the fact that he had access to the transcripts in preparation of
his state habeas petition as well as his Petition to this Court, Scott does not make any showing of
prejudice as a result of the failure to provide him with a copy of the transcript in connection with
his motions for a new trial and a mistrial. That is, Scott does not indicate what additional facts
he might have presented in his motions or how those additional facts might have changed the
outcome. Scott is not entitled to relief under his second ground.
Ground 4: Prosecutorial Misconduct/Overreaching
Scott alleges a veritable smorgasbord of supposed acts of the prosecutor in this case that
he contends constituted misconduct. The details are sufficiently recited in the Superior Court’s
decision and are not repeated here. The Superior Court rejected Scott’s arguments, holding:
[Scott] next claims prosecutorial misconduct in introducing gruesome photos,
making unnecessary references to bloody victims, mischaracterizing the evidence
regarding the victim’s injuries, making unnecessary presentation of bloody pictures·
to the victims, and making over-dramatized closing and rebuttal arguments to inflame
the passions of the jurors.
59
See United States v. Bari, 750 F.2d 1169, 1181-82 (2d Cir. 1984) (daily transcripts
required to be furnished to an indigent defendant under 18 U.S.C. § 3006A if ordered by the
prosecution); Walle v. Sigler, 456 F.2d 1153, 1156 (8th Cir. 1972) (declining to extend the
requirement of transcripts on appeal to daily transcripts); cf Gardner v. California, 393 U.S. 367,
372 (1969) (Harlan, J., dissenting) (“[A] transcript of a prior hearing may be an incidental
convenience—so to would a daily transcript at a criminal trial—but the Fourteenth Amendment
does not require a state to furnish an indigent with every luxury that a wealthy litigant might
conceivably choose to purchase” (citing Draper v. Washington, 372 U.S. 487, 496 (1963))).
60
Carey v. Musladin, 549 U.S. 70, 77 (2006).
20
The claim is barred by Robbins/Clark. Nor is appellate counsel shown to be
ineffective in failing to raise the claim on appeal, as none of [Scott’s] claims of
misconduct is meritorious. [Scott] does not show that any of the prosecutor's actions
were misconduct; rather, the matters he cites do not appear to be beyond the realm
of permissible questioning, argument, or admission of evidence. The prosecutor was
entitled to establish evidence of injuries with eyewitness testimony of seeing blood,
and its prejudicial value does not appear to have outweighed its probative value. The
prosecutor did not go beyond the boundaries of closing argument is summarizing the
prosecutor’s view of the evidence. The prosecutor did not err in discussing the
meaning of being armed. [Scott] does not state how the prosecutor misinterpreted
reasonable doubt, or what the prosecutor argued that was beyond the realm of
reasonable doubt. The prosecutor did not mislead or coerce Li’s testimony regarding
the money that was missing, nor did the prosecutor commit misconduct in arguing
the money issue to the jury. The prosecutor was entitled to argue about the prior
conviction, which was an element of the charged Penal Code § 12021(a) offense.
Other examples cited by [Scott] are not specific enough to determine, with [Scott]
merely stating a conclusion and citing a page in reporter’s transcript; none of the
cited pages appear to contain any misconduct or misconduct that was prejudicial.
Indeed, none of the examples cited by [Scott] were so prejudicial as to warrant
reversal, even if they did amount to misconduct. As such, the claim is not subject to
an exception to the Robbins/Clark bar, and fails on the merits in any event (Bower).61
A prosecutor may “prosecute with earnestness and vigor—indeed, he should do so.”62
“To warrant habeas relief, prosecutorial misconduct must ‘so infect the trial with unfairness as to
make the resulting conviction a denial of due process.’”63 In essence, what is required is that
reviewing courts consider the equivalent to evaluating whether there was a “reasonable
probability” of a different result.64
This Court has reviewed Scott’s allegations and determined that the decision of the
Superior Court was not “contrary to, or involve[ ] an unreasonable application of, clearly
61
Docket No. 8 at 157-58.
62
Berger v. United States, 295 U.S. 78, 88 (1935).
63
Davis v. Woodford, 384 F.3d 628, 644 (9th Cir. 2004) (quoting Darden v. Wainwright,
477 U.S. 168, 181 (1986)).
64
See Hein v. Sullivan, 601 F.3d 897, 914-15 (9th Cir. 2010).
21
established Federal law, as determined by the Supreme Court of the United States” at the time the
state court rendered its decision nor “based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.”65 Scott is not entitled to relief under his
fourth ground.
Ground 5: Insufficiency of the Evidence (Robbery Counts)
Scott contends that the evidence is insufficient to support his conviction of robbing two
of the victims because the property belonged solely to the other two victims. The California
Court of Appeal disagreed, holding:
Defendants argue they cannot be convicted of robbing Huyen and Truc
because the stolen credits cards and money only belonged to Canh and Nhan.
In determining the sufficiency of the evidence, we ask “‘whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable
doubt.’ [Citation.]” (People v. Hatch (2000) 22 Cal.4th 260, 272, italics omitted.)
We resolve neither credibility issues nor evidentiary conflicts; we look for substantial
evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
“Robbery is the felonious taking of personal property in the possession of
another, from his person or immediate presence, and against his will, accomplished
by means of force or fear.” (§ 211.) California follows “the traditional approach that
limits victims of robbery to those persons in either actual or constructive possession
of the property taken.” (People v. Nguyen (2000) 24 Cal.4th 756, 764.) “‘Robbery
is an offense against the person; thus a store employee may be the victim of a robbery
even though he is not its owner and not at the moment in immediate control of the
stolen property.’ [Citation.]” (People v. Miller (1977) 18 Cal.3d 873, 880.)
Business employees “have sufficient representative capacity to their employer so as
to be in possession of property stolen from the business owner.” (People v. Jones
(2000) 82 Cal.App.4th 485, 491.) Likewise, a family member acts in a representative
capacity over property belonging to other family members.
In People v. Gordon (1982) 136 Cal.App.3d 519 (Gordon ), the defendants
entered a residence by ruse, threatened a couple with a firearm, and took drugs and
money belonging to the couple’s absent adult son. (Id. at pp. 523-524.) The
appellate court noted neither parent physically possessed the items taken nor knew
65
28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 402-06 (2000); see also
Lockyer v. Andrade, 538 U.S. 63, 70-75 (2003) (explaining this standard).
22
about the marijuana or money, and the only evidence to support a finding of
possession was the couple’s ownership and residence in the home where the crime
occurred. (Id. at p. 529.) The court upheld the jury’s determination the parents were
robbery victims who possessed their son’s items for purposes of the robbery statute.
(Ibid.) The court noted various individuals have been designated as victims in a
robbery such as a purchasing agent in charge of payroll, store clerks, barmaids,
janitors in sole occupation of premises, watchmen, and gas station attendants. (Ibid.)
“Clearly, if those individuals . . . were responsible for the protection and preservation
of the property entrusted to them, parents have at least the same responsibility to
protect goods belonging to their son who resides with them in their home.” (Ibid.)
There was ample evidence for the jury to find that Huyen and Truc had a
responsibility to protect the money and credit cards of their parents and grandparents.
Defendants stole the family’s rent money. Indeed, all four victims were forced to the
ground next to each other and serially threatened by Heng in an effort to locate the
family’s valuables. Huyen was pistol-whipped and led to believe he would be shot
if he did not tell Heng where the money was located. He was then forced to watch
his elderly parents being beaten in another unsuccessful attempt to get him to reveal
the location of the money. In a last attempt to get the family’s money, Truc was
threatened with rape, with the timely arrival of the police foreclosing an even greater
tragedy. Taking the entire incident into account, all four victims were equally
threatened and equally brutalized, and the stolen money was intended for the family’s
general welfare.
All the foregoing separates Huyen and Truc from the Good Samaritan or
casual business visitor found not to constructively possess the stolen property. (See,
e.g., Sykes v. Superior Court (1994) 30 Cal.App.4th 479, 480-481 [security guard
employed at different store not in constructive possession of property]; People v.
Nguyen, supra, 24 Cal.4th at p. 764 [visitor at business not in constructive possession
of property taken from business and its employees].) Although the victims in
Gordon were parents rather than children, Huyen and Truc are adults, fully capable
of protecting the property of the elderly Canh and Nhan. Moreover, defendants made
no distinction between the four victims in their impositions on each as they sought
the location of the money and other valuables. Having been personally and directly
victimized by three robbers, the defendants, and holding a critical interest and shared
responsibility in keeping the family’s rent money, Truc and Huyen were in
constructive possession of the stolen $1,500.66
As articulated by the Supreme Court in Jackson, the constitutional standard for
sufficiency of the evidence is whether, “after viewing the evidence in the light most favorable to
66
People v. Heng [Scott], No. C054315, 2008 WL 2721718, at *2-4 (Cal. Ct. App. Jul.
14, 2008).
23
the prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.”67 This Court must, therefore, determine whether the California
court unreasonably applied Jackson. In making this determination, this Court must bear in mind
that it is a fundamental precept of dual federalism that the States possess primary authority for
defining and enforcing the criminal law.68 Consequently, although the sufficiency of the
evidence review by this Court is grounded in the Fourteenth Amendment, it must undertake its
inquiry by reference to the elements of the crime as set forth in state law.69 A fundamental
principle of our federal system is “that a state court’s interpretation of state law, including one
announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas
corpus.”70 A determination of state law by a state intermediate appellate court is also binding in a
federal habeas action.71 This is especially true where the highest court in the state has denied
review of the lower court’s decision.72 “[A]bsent a specific constitutional violation, federal
habeas corpus review of trial error is limited to whether the error ‘so infected the trial with
67
Jackson v. Virginia, 443 U.S. 307, 319 (1979); see McDaniel v. Brown, 130 S. Ct. 665,
673 (2010) (reaffirming this standard).
68
See Engle v. Isaac, 456 U.S. 107, 128 (1982).
69
Jackson, 443 U.S. at 324 n.16.
70
Bradshaw v. Richey, 546 U.S. 74, 76 (2005); see West v. Am. Tel. & Tel. Co., 311 U.S.
223, 236 (1940) (“[T]he highest court of the state is the final arbiter of what is state law. When it
has spoken, its pronouncement is to be accepted by federal courts as defining state law . . . .”).
71
See Hicks v. Feiock, 485 U.S. 624, 629-30 & n.3 (1988) (noting state appellate court’s
determination of state law is binding and must be given deference).
72
Id.; see West, 311 U.S. at 237 (“This is the more so where, as in this case, the highest
court has refused to review the lower court’s decision rendered in one phase of the very litigation
which is now prosecuted by the same parties before the federal court.”); Shannon v. Newland,
410 F.3d 1083, 1087 (9th Cir. 2005) (same).
24
unfairness as to make the resulting conviction a denial of due process.’”73 “Federal courts hold
no supervisory authority over state judicial proceedings and may intervene only to correct wrongs
of constitutional dimension.”74 It is through this lens that this court must view an insufficiency of
the evidence claim.
In this case, the California Court of Appeal held that the evidence satisfied the elements
of robbery as defined by California law. Scott’s reliance on Georgia v. Randolph75 is misplaced
and misconstrues its holding. Randolph held that one occupant could not give law enforcement
effective consent to search shared premises as against a co-tenant who is present and states a
refusal to permit a search.76 This has no bearing on whether or not there was constructive
possession sufficient to satisfy the California statute—entirely a question of state law not within
the purview of this Court in a federal habeas proceeding.77 Scott is not entitled to relief under his
fifth ground.
73
Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (quoting Donnelly v. DeChristoforo, 416
U.S. 637, 643 (1974)).
74
Smith v. Philips, 455 U.S. 209, 221 (1982) (citations omitted); see also Sanchez-Llamas
v. Oregon, 548 U.S. 331, 345 (2006) (“It is beyond dispute that we do not hold a supervisory
power over the courts of the several states.” (quoting Dickerson v. United States, 530 U.S. 428,
438 (2000))); Wainwright v. Goode, 464 U.S. 78, 86 (1983) (per curiam).
75
547 U.S. 103 (2006).
76
Id. at 108-09.
77
Swarthout v. Cooke, 131 S. Ct. 859, 863 (2011) (per curiam) (“The short of the matter
is that the responsibility for assuring that the constitutionally adequate procedures governing
California’s parole system are properly applied rests with California courts, and is no part of the
Ninth Circuit’s business.”).
25
Ground 6: Application of Penal Code §§ 654/664
Scott was sentenced to consecutive sentences for each of the four robbery counts and the
use of a firearm enhancement. Scott contends that this violated the Equal Protection and Due
Process Clauses. Properly construed, however, Scott’s argument is not a constitutional equal
protection or due process claim; instead, his claim is that the trial court misapplied California
Penal Code §§ 654 and 664. The Superior Court rejected Scott’s arguments, holding:
[Scott] next claims that Counts 2, 3, and 4 should have been stayed under
Penal Code § 654. [Scott], however, ignores the fact that the robbery counts, which
charged violent crimes, all involved separate victims, an exception to Penal Code
§ 654 (People v. Miller (1977) 18 Cal.3d 873, 885; People v. Robinson (1988) 198
Cal. App. 3d 674). The claim therefore is barred under Robbins/Clark and fails
under Bower in any event.78
The proper interpretation and application of the California Penal Code is purely and
simply a question of state law beyond the purview of this Court in a federal habeas proceeding.79
Having failed to present a question of constitutional dimension, Scott is not entitled to relief
under his sixth ground.80
Ground 7: Ineffective Assistance of Trial Counsel
As with his fourth ground (prosecutorial misconduct) Scott alleges a veritable
smorgasbord of supposed errors and omissions of his trial counsel that he contends constituted
ineffective assistance of counsel. The details of Scott’s specific claims are recited in the Superior
78
Docket No. 8 at 160.
79
Cooke, 131 S. Ct. at 863.
80
Sanchez-Llamas v. Oregon, 548 U.S. 331, 345 (2006) (“It is beyond dispute that we do
not hold a supervisory power over the courts of the several states.” (quoting Dickerson v. United
States, 530 U.S. 428, 438 (2000))).
26
Court’s decision and are not repeated here. The Superior Court rejected all of Scott’s claims,
holding:
[Scott] next claims that trial counsel rendered ineffective assistance of
counsel.
[Scott] does so in mostly conclusionary terms and fails to state with
particularity the facts upon which he is relying to justify relief (In re Swain (1949)
34 Ca1.2d 300). Other allegations simply lack a showing that the counsel’s decision
was not a reasonable tactical choice, or that any error was prejudicial (Strickland).
[Scott] also claims that his trial counsel denied him the right to selfrepresentation. [Scott], however, could not have been granted self-representation
status by his trial counsel; rather, only the court could grant that status upon proper
motion.
[Scott] claims that his counsel did not show up for his self-representation and
Marsden (People v. Marsden (1970) 2 Cal.3d 118) hearings. [Scott], however, does
not show that he was prejudiced or that his counsel had no excuse for not being
present. Nor does [Scott] state any, grounds for finding anything erroneous in the
hearings that were held on the matter.
[Scott] complains that counsel's motions for severance and to exclude
statements were lacking, but fails to show with sufficient specificity what could have
been argued that was reasonably likely to have had a different outcome. [Scott] also
takes issue with the truth of certain evidence that he thought should have been
excluded, claiming it was really otherwise; however, that is not proof that it actually
was otherwise, nor does it constitute ineffective assistance of counsel. He also
claims that some of his statements should not have been suppressed and that his
counsel was ineffective in not opening the door to their use; [Scott], however, does
not show that that was not a reasonable tactical choice.
[Scott] also gives examples of conflicting testimony. This does not constitute
a cognizable claim. It also simply appears to be a rambling on by [Scott], nitpicking
at conflicts in testimony that the jury could have sorted out in determining the facts.
Yet, further on in the petition, [Scott] connects this back to somehow being relevant
to his self-representation/Marsden hearings. The connection is indeterminable.
[Scott] then lists items that he felt counsel should have done at trial. He does
not, however, attach any reasonably available documentary evidence, such as
affidavits from witnesses, to show what could have been introduced at trial that
would have been reasonably likely to make a difference in the outcome.
[Scott] also claims ineffective failing to object with regard to his other claims
in the petition. As they had no merit, this claim has no merit.
[Scott] claims ineffective assistance of counsel in failing to arrange for a
photo lineup. [Scott], however, does not show prejudice, as [Scott] was identified
by all the victims, including in field identifications, and conflicting trial evidence
appears to have been rejected by the jurors. An additional photo lineup would not
have made a difference in the outcome, especially if such a lineup would have
27
resulted in more positive identifications of [Scott]; thus, it does not appear that
counsel made an unreasonable tactical choice in not requesting a lineup. Nor does
it appear that the court would have granted yet another lineup, beyond the
identifications that already had been made.
[Scott] claims ineffective assistance of counsel in failing to file mistrial arid
new trial motions. [Scott] does admit that his own new trial motion was considered
by the court. [Scott] then changes his argument, to that of error in not providing him
with transcripts to support his new trial motion. [Scott], however, admits that the
court found [Scott’s] claims to be without foundation, and does not now show
otherwise.
[Scott] claims ineffective assistance of second counsel appointed to
investigate and prepare a new trial motion based on ineffective assistance of counsel,
in not preparing himself to argue. [Scott] admits, however, that second counsel
testified that he found nothing meritorious in [Scott’s] arguments. [Scott]
nevertheless claims that second counsel did not receive or review transcripts. [Scott],
however, fails to now state what should have been argued that would have been
reasonably likely to have made a difference in the outcome.
[Scott] claims ineffective assistance of counsel with regard to the Penal Code
§ 12021(a) charge. However, he fails to understand that being an ex-felon is an
element of that offense and that the prosecution was required to prove his ex-felon
status to the jury.
[Scott] claims ineffective assistance of counsel with regard to aggravating
factors in sentencing. [Scott], however, fails to show that any aggravating factor
relied on by the court in sentencing was erroneous.
[Scott] claims ineffective assistance of counsel in failing to challenge the
amount of damages incurred by the victims. [Scott] however, fails to show that the
amount was incorrect.81
Under Strickland, to demonstrate ineffective assistance of counsel, Scott must show both
that his counsel’s performance was deficient and that the deficient performance prejudiced his
defense.82 A deficient performance is one in which “counsel made errors so serious that counsel
was not functioning as the counsel guaranteed by the Sixth Amendment.”83 Scott must show that
defense counsel’s representation was not within the range of competence demanded of attorneys
81
Docket No. 8 at 158-60.
82
Strickland v. Washington, 466 U.S. 668, 687 (1984).
83
Id.
28
in criminal cases, and that there is a reasonable probability that, but for counsel’s ineffectiveness,
the result would have been different.84 An analysis that focuses “solely on mere outcome
determination, without attention to whether the result of the proceeding was fundamentally unfair
or unreliable, is defective.”85 An ineffective assistance of counsel claim should be denied if the
petitioner fails to make a sufficient showing under either one of the Strickland prongs.86
In reviewing ineffective assistance of counsel claims in a federal habeas proceeding:
The question “is not whether a federal court believes the state court’s
determination” under the Strickland standard “was incorrect but whether that
determination was unreasonable—a substantially higher threshold.” Schriro, supra,
at 473, 127 S.Ct. 1933. And, because the Strickland standard is a general standard,
a state court has even more latitude to reasonably determine that a defendant has not
satisfied that standard. See Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct.
2140, 158 L.Ed.2d 938 (2004) (“[E]valuating whether a rule application was
unreasonable requires considering the rule’s specificity. The more general the rule,
the more leeway courts have in reaching outcomes in case-by-case
determinations”).87
84
Hill v. Lockhart, 474 U.S. 52, 57 (1985).
85
Lockhart v. Fretwell, 506 U.S. 364, 369 (1993); see Strickland, 466 U.S. at 687; see
also Kimmelman v. Morrison, 477 U.S. 365, 374 (1986) (“The essence of an ineffectiveassistance claim is that counsel’s unprofessional errors so upset the adversarial balance between
defense and prosecution that the trial was rendered unfair and the verdict rendered suspect.”
(citing Strickland, 466 U.S. at 687)); United States v. Cronic, 466 U.S. 648, 656 (1984) (“The
right to the effective assistance of counsel is recognized not for its own sake, but because of the
effect it has on the ability of the accused to receive a fair trial. Absent some effect of challenged
conduct on the reliability of the trial process, the Sixth Amendment guarantee is generally not
implicated.” (citations omitted)).
86
See Strickland, 466 U.S. at 697 (courts may consider either prong of the test first and
need not address both prongs if the defendant fails on one).
87
Knowles v. Mirzayance, 556. U.S. 111, 123 (2009).
29
It is through this doubly deferential lens that a federal habeas court reviews Strickland claims
under the § 2254(d)(1) standard.88
The Supreme Court, applying the “doubly deferential standard,” has made clear that when
adjudicating ineffective assistance of counsel claims in federal habeas proceedings, unlike the
situation on direct review, focus is not on whether counsel’s performance fell below the
Strickland standard. Rather, the focus is on whether the state-court decision holding that counsel
was not ineffective constituted an “unreasonable application of federal law[,] [which] is different
from an incorrect application of federal law.”89
Under § 2254(d), a habeas court must determine what arguments or theories
supported or, as here, could have supported, the state court’s decision; and then it
must ask whether it is possible fairminded jurists could disagree that those arguments
or theories are inconsistent with the holding in a prior decision of this Court.90
While judicial inquiry into counsel’s performance under Strickland must be highly
deferential, it is “by no means insurmountable,” but nonetheless remains “highly demanding.”91
“Strickland does not guarantee perfect representation, only a reasonably competent attorney.”92
“Only those habeas petitioners who can prove under Strickland that they have been denied a fair
88
Id. (citing Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003)).
89
Harrington v. Richter, 131 S. Ct. 770, 785 (2011) (citing Williams v. Taylor, 529 U.S.
362, 412 (2000)).
90
Id. at 786.
91
Kimmelman v. Morrison, 477 U.S. 365, 382 (1986).
92
Richter, 131 S. Ct. at 791 (internal quotation marks and citation omitted).
30
trial by the gross incompetence of their attorneys will be granted the writ and will be entitled to
retrial.”93
Scott bears the burden of proving that counsel’s trial strategy was deficient. “[T]he
defendant must overcome the presumption that, under the circumstances, the challenged action
‘might be considered sound trial strategy.’”94 “[He] bears the heavy burden of proving that
counsel’s assistance was neither reasonable nor the result of sound trial strategy.”95 “In
determining whether the defendant received effective assistance of counsel, ‘we will neither
second-guess counsel’s decisions, nor apply the fabled twenty-twenty vision of hindsight,’ but
rather, will defer to counsel’s sound trial strategy.”96 “Because advocacy is an art and not a
science, and because the adversary system requires deference to counsel’s informed decisions,
strategic choices must be respected in these circumstances if they are based on professional
judgment.”97
“A convicted defendant making a claim of ineffective assistance must identify the acts or
omissions of counsel that are alleged not to have been the result of reasonable professional
judgment.”98 The court must then consider those acts or omissions against “prevailing
professional norms.”99 Even then, “counsel is strongly presumed to have rendered adequate
93
Morrison, 477 U.S. at 382.
94
Strickland v. Washington, 466 U.S. 668, 689 (1984).
95
Murtishaw v. Woodford, 255 F.3d 926, 939 (9th Cir. 2001).
96
Id. (quoting Strickland, 466 U.S. at 689).
97
Strickland, 466 U.S. at 681.
98
Id. at 690.
99
Id.
31
assistance and made all significant decisions in the exercise of reasonable professional
judgment.”100
Scott has not met this heavy burden. He has shown no evidence indicating that counsel
was unreasonable or ineffective for selecting his chosen trial strategy. He presented no alternate
attorney’s determination challenging counsel’s decisions or actions. He has not quoted any
“[p]revailing norms of practice as reflected in American Bar Association standards and the like”
indicating that counsel acted outside these norms.101
This Court cannot say that the decision of the 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 determination of the facts
in light of the evidence presented in the State court proceeding.”102 Nor, viewing the matter
through the doubly-deferential lens of Mirzayance-Richter, can this Court find that the state court
unreasonably applied the correct legal principle to the facts of Scott’s case within the scope of
Andrade-Williams-Landrigan-Richter; i.e., the state court decision was not more than incorrect
or erroneous, its application of clearly established federal law was not objectively unreasonable.
Scott has failed to establish that counsel committed any error that was so serious that counsel was
not functioning as the counsel guaranteed by the Sixth Amendment or that Scott’s defense was
prejudiced, as required by Strickland-Hill. Scott is not entitled to relief under his seventh
ground.
100
Id.
101
Id. at 688.
102
28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 402-06 (2000); see also
Lockyer v. Andrade, 538 U.S. 63, 70-75 (2003) (explaining this standard).
32
Ground 8: Trial Court Abridgement of Constitutional Rights
Scott alleges a broad array of what he contends constituted errors on the part of the trial
court in violation of his rights under the Fifth, Sixth, and Eighth Amendments. These claims
include allowing the prosecutor to refer to Scott’s prior conviction, failure to correct alleged
prosecutorial misrepresentations and other instances of misconduct, and improperly ruling on
objections. As did the Superior Court, this Court notes that these claimed errors relate to matters
raised in other claims. The Superior Court rejected Scott’s arguments, holding:
[Scott] next claims court error with regard to matters raised in or related to
[Scott’s] other claims in the petition. The claims are barred by Robbins/Clark, and
[Scott] does not show that appellate counsel made an unreasonable tactical choice not
to present any of these claims on the appeal.
Regardless, [Scott] fails to show any error, and instead rambles on, nitpicking
at a plethora of events that do not constitute any viable claim.103
This Court has reviewed in depth the allegations made by Scott and determined that the
decision of the Superior Court that Scott did not present any viable claim was not “contrary to, or
involve[ ] an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States” at the time the state court rendered its decision nor “based
on an unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.”104 Scott is not entitled to relief under his eighth ground.
103
Docket No. 8 at 160.
104
28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 402-06 (2000); see also
Lockyer v. Andrade, 538 U.S. 63, 70-75 (2003) (explaining this standard).
33
Ground 9: Imposition of Restitution
Scott contends that the trial court’s failure to hold a hearing to establish the amount of
restitution violated his rights under the Fourth, Fifth, Seventh, and Fourteenth Amendments. The
Superior Court denied this claim, holding:
[Scott] next claims that $19,000 in victim restitution was erroneously ordered
because there was no hearing to establish the actual loss. [Scott], however, ignores
that the victim restitution was ordered at his sentencing hearing, which was his
opportunity to object to the amount and present evidence otherwise. Nor does he
now show that $19,000 was an incorrect amount. The claim therefore is barred under
Robbins/Clark and fails under Bower in any event.105
First, Scott’s reliance on the Seventh Amendment right to a jury trial in suits at common
law has never been held applicable to the states. The balance of Scott’s arguments so-called
equal protection and due process arguments, as properly construed, are that the sentencing court
did not follow state law in setting the amount of restitution, matters beyond the purview of this
Court in a federal habeas proceeding.106 Having failed to present a question of constitutional
dimension, Scott is not entitled to relief under his ninth ground.107
Ground 10: Ineffective Assistance of Appellate Counsel
Scott contends that because his appellate counsel did not raise all of the claims Scott
presented to counsel and requested be raised, he was denied the effective assistance of appellate
counsel. The Superior Court rejected Scott’s argument, holding:
[Scott] does complain that his appellate attorney declined to raise every single
issue that could be raised on appeal, and instead chose only the best ones. This could
be deemed as a claim of ineffective assistance of counsel on appeal in not raising this
105
Docket No. 8 at 161.
106
Swarthout v. Cooke, 131 S. Ct. 859, 863 (2011) (per curiam).
107
Sanchez-Llamas v. Oregon, 548 U.S. 331, 345 (2006).
34
claim, so as to constitute an exception to the Robbins/Clark bar. However, [Scott]
fails to show ineffective assistance because the appellate attorney properly found that
any such claim would not have prevailed (see Strickland v. Washington (1984) 466
U.S. 668). This is so with regard to all of [Scott’s] claims in the petition.108
The failure of appellate counsel to raise meritless or weak issues does not constitute
ineffective assistance of counsel.109 This Court cannot say that the decision of the 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
determination of the facts in light of the evidence presented in the State court proceeding.”110
Nor, viewing the matter through the doubly-deferential lens of Mirzayance-Richter, can this
Court find that the state court unreasonably applied the correct legal principle to the facts of
Scott’s case within the scope of Andrade-Williams-Landrigan-Richter; i.e., the state court
decision was not more than incorrect or erroneous, its application of clearly established federal
law was not objectively unreasonable. Scott has failed to establish that counsel committed any
error that was so serious that counsel was not functioning as the counsel guaranteed by the Sixth
Amendment or that Scott’s defense was prejudiced, as required by Strickland-Hill. Scott is not
entitled to relief under his tenth ground.
108
Docket No. 8 at 157.
109
See Jones v. Barnes, 463 U.S. 745, 751-52 (1983) (holding that appellate counsel does
not have an obligation to raise every nonfrivolous argument); Miller v. Keeney, 882 F.2d 1428,
1428 (9th Cir. 1989) (holding that appellate counsel’s failure to raise a weak issue did not
constitute ineffective counsel).
110
28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 402-06 (2000); see also
Lockyer v. Andrade, 538 U.S. 63, 70-75 (2003) (explaining this standard).
35
Ground 11: Failure to sever trial from co-defendants
The trial court denied Scott’s motion to sever his trial from those of his co-defendants.
Scott contends that this violated his rights under the Fifth and Fourteenth Amendments. The
Superior Court rejected Scott’s arguments, holding:
Petitioner next claims that the court erred in denying his severance motion.
Petitioner, however, fails to show that the denial was erroneous. That he and his
codefendants may have had antagonistic defenses was not sufficient to warrant
severance (see People v. Boyde (1988) 46 Cal.3d 212, 232, affirmed, Boyde v.
California (1990) 494 U.S. 370; People v. Turner (1984) 37 Ca1.3d 302, 312-313).
Rather, this was a classic case for a joint trial. The claim therefore is barred under
Robbins/Clark and fails under Bower in any event.111
Under California law, the denial of a motion to sever trials of co-defendants otherwise
properly joined is within the discretion of the trial judge, overturned only if the defendant carries
the burden of clearly showing potential prejudice.112 Federal law is the same.113 Although the
Ninth Circuit has suggested that an abuse of discretion may also amount to a constitutional
violation,114 the Supreme Court has never held that abuse of discretion is an appropriate basis for
granting federal habeas relief. Indeed, quite to the contrary, the Supreme Court has suggested
that, while abuse of discretion is an appropriate standard on direct review, in a federal habeas
111
Docket No. 8 at 160.
112
Frank v. Superior Court, 770 P.2d 1119, 1120 (Cal. 1989).
113
Zafiro v. United States, 506 U.S. 534, 538-39 (1993); United States v. Martinez, 657
F.3d 811, 819-20 (9th Cir. 2011).
114
See Schell v. Witek, 218 F.3d 1017, 1025 (9th Cir. 2000) (en banc).
36
proceeding it is not.115 Having failed to present a question of constitutional dimension, Scott is
not entitled to relief under his eleventh ground.116
V. CONCLUSION AND ORDER
Scott 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.117 Any further request for a Certificate of Appealability must be addressed to the
Court of Appeals.118
The Clerk of the Court is to enter judgment accordingly.
Dated: March 1, 2012.
/s/ James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
United States District Judge
115
Renico v. Lett, 130 S. Ct. 1855, 1862 (2010) (“It is not even whether it was an abuse of
discretion for her to have done so—the applicable standard on direct review. The question under
AEDPA is instead whether the determination of the Michigan Supreme Court that there was no
abuse of discretion was “an unreasonable application of . . . clearly established Federal law.”
(citing § 2254(d)(1))).
116
Sanchez-Llamas v. Oregon, 548 U.S. 331, 345 (2006).
117
28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S. 668, 705-06 (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))).
118
See Fed. R. App. P. 22(b); Ninth Circuit R. 22-1.
37
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