Schultz v. Hill
Filing
23
MEMORANDUM DECISION signed by Senior Judge James K. Singleton on 11/14/12. The petition for writ of habeas corpus is DENIED. The Court declines to issue COA. CASE CLOSED. (Manzer, C)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
KEITH SCHULTZ,
No. 2:11-cv-00398-JKS
Petitioner,
MEMORANDUM DECISION
vs.
GARY SWARTHOUT,1 Warden,
California State Prison, Solano,
Respondent.
Keith Schultz, a state prisoner appearing pro se, filed a Petition for a Writ of Habeas
Corpus under 28 U.S.C. § 2254. Schultz is currently in the custody of the California Department
of Corrections and Rehabilitation, incarcerated at the California State Prison, Solano.
Respondent has answered, and Schultz has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Schultz was convicted by a Yolo County Superior Court jury of transportation of
methamphetamine (Cal. Health & Safety Code § 11379(a)) and possession of methamphetamine
for sale (Cal. Health & Safety Code § 11378). The jury also found that Schultz had been
previously convicted of a serious felony (Cal. Penal Code § 667(e)(1)). In September 2009, the
trial court sentenced Schultz to an aggregate prison term of twelve years. The California Court
of Appeal, Third Appellate District, affirmed Schultz’s conviction in an unpublished decision,2
1
Gary Swarthout, Warden, California State Prison, Solano, is substituted for Rick Hill,
Warden, Folsom State Prison. Fed. R. Civ. Proc. 25(d).
2
People v. Schultz, No. C063099, 2010 WL 3966798 (Cal. Ct. App. Oct. 12, 2010). The
California Court of Appeal did agree with Schultz that the sentence on the possession for sale
(continued...)
and the California Supreme Court denied review on January 12, 2011. Schultz timely filed his
Petition for relief in this Court on February 11, 2011. Because the facts underlying Schultz’s
conviction are not relevant to the issues presented on appeal, they are not recited here.
II. GROUNDS RAISED/DEFENSES
In his Amended Petition Schultz raises two grounds: (1) the trial court erred in allowing
the prosecution’s drug expert to testify on the ultimate issue of whether Schultz possessed the
methamphetamine for sale; and (2) cumulative error. Respondent does not assert any affirmative
defenses.
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.”3 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.”4 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
2
(...continued)
count should have been stayed, and remanded the matter to the superior court to modify the
sentence accordingly.
3
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).
4
Williams, 529 U.S. at 412 (alteration added).
2
power of the Supreme Court over federal courts.5 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.’”6 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.”7 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.8 “[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.’”9 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.10 Because state court judgments of
5
Early v. Packer, 537 U.S. 3, 10 (2002).
6
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).
7
Wiggins v. Smith, 539 U.S. 510, 520-21 (2003) (internal quotation marks and citations
omitted).
8
Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410).
9
Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (quoting Donnelly v. DeChristoforo, 416
U.S. 637, 642, 643 (1974)).
10
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)).
3
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.11
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.12
In applying this standard, this Court reviews the “last reasoned decision” by the state
court.13 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.14 This Court gives
11
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”).
12
Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011) (emphasis added).
13
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 . . . . ”).
14
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...)
4
the presumed decision of the state court the same AEDPA deference that it would give a
reasoned decision of the state court.15
To the extent that Schultz raises issues of the proper application of state law, they are
beyond the purview of this Court in a federal habeas proceeding.16 It is a fundamental precept of
dual federalism that the states possess primary authority for defining and enforcing the criminal
law.17 “[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.”18 A federal court errs if
it interprets a state legal doctrine in a manner that directly conflicts with the state supreme court’s
interpretation of the law.19 It does not matter that the state supreme court’s statement of the law
14
(...continued)
unreasonable legal or factual conclusion does not require that there be an opinion from the state
court explaining the state court’s reasoning.”).
15
See Richter, 131 S. Ct. at 784-85 (rejecting the argument that a summary disposition
was not entitled to § 2254(d) deference).
16
Swarthout v. Cooke, 131 S. Ct. 859, 863 (2011) (per curiam) (holding that it is of no
federal concern whether state law was correctly applied).
17
See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (a federal habeas court cannot
reexamine a state court’s interpretation and application of state law); Walton v. Arizona, 497 U.S.
639, 653 (1990) (it is presumed that the state court knew and correctly applied state law),
overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002); see also Engle v. Isaac,
456 U.S. 107, 119 (1982) (challenging the correctness of the application of state law does not
allege a deprivation of federal rights sufficient for habeas relief); Bell v. Cone, 543 U.S. 447, 455
(2005) (a federal court may not lightly presume that a state court failed to apply its own law).
18
Bradshaw v. Richey, 546 U.S. 74, 76 (2005); see West v. AT&T, 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 . . . .”).
19
See Bradshaw, 546 U.S. at 76-78 (“Because the Sixth Circuit disregarded the Ohio
Supreme Court’s authoritative interpretation of Ohio law, its ruling on sufficiency of the
evidence was erroneous.”).
5
was dictum if it is perfectly clear and unambiguous.20 A determination of state law by a state
intermediate appellate court is also binding in a federal habeas action.21 This is especially true
where the highest court in the state has denied review of the lower court’s decision.22
A petitioner may not transform a state-law issue into a federal one by simply asserting a
violation of due process.23 “[The Supreme Court has] long recognized that a mere error of state
law is not a denial of due process.”24 “[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.’”25 “Federal courts hold no supervisory
authority over state judicial proceedings and may intervene only to correct wrongs of
constitutional dimension.”26
20
Id. at 76.
21
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).
22
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).
23
Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996).
24
Cooke,131 S. Ct. at 863 (internal quotation marks and citations omitted).
25
Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (quoting Donnelly v. DeChristoforo, 416
U.S. 637, 643 (1974)).
26
Smith v. Phillips, 455 U.S. 209, 221 (1982) (citations omitted); see also SanchezLlamas 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))).
6
IV. DISCUSSION
Ground 1: Expert Testimony
During trial a drug expert called by the prosecution testified that in his opinion Schultz
possessed the methamphetamine with the intent to sell it. Schultz contends that admission of this
testimony was error because it was based upon the specific facts of Schultz’s case, not upon
hypothetical facts. As a backup, in the event that this ground is deemed forfeited on the basis
that it was not objected to at trial, Schultz contends his trial counsel was ineffective for failing to
renew the objection at trial. The California Court Appeal, although agreeing that the expert’s
testimony was presented in an improper form, held that the error was nonetheless harmless and
rejected his accompanying ineffective assistance of counsel claim.
Testimony Of The Prosecution’s Drug Expert
[Schultz] next contends that the trial court erred in allowing the prosecution’s
drug expert to testify that [Schultz] possessed the methamphetamine for sale. In the
alternative, [Schultz] claims counsel rendered ineffective assistance in failing to
preserve the issue. We find no prejudicial error.
[Schultz] moved in limine to exclude “[t]estimony of any law enforcement
officer regarding the issue of whether [[Schultz]] ultimately possessed
methamphetamine for the purpose of sale, as charged in count two.” [Schultz] stated
two grounds: “First, any such conclusion is a legal judgment, based on a factual
determination of the evidence, which is within the realm and duty of the jury.
Second, in the absence of any foundational evidence regarding the police officer’s
education, training, experience, or other qualifications to testify as an expert witness
on the issue, any such testimony is simply inadmissible lay opinion evidence, and
should be excluded under Evidence Code sections 352, 720, 801.”
The court ruled that if an adequate foundation was presented, the opinion of
an expert witness based on a hypothetical set of facts would be admissible. The
prosecutor acknowledged that the expert opinion was admissible so long as it was
based on a hypothetical.
Defense counsel signed a “requested stipulation” that the motions in limine
would be considered objections made at trial. The prosecutor did not sign the
stipulation.
West Sacramento Police Officer Eric Angle who had been assigned to the
Yolo County narcotics enforcement team testified and explained his training and
experience with respect to the identification, sale, and methods of ingestion of
7
methamphetamine. On voir dire, defense counsel questioned Officer Angle about the
officer’s personal experience in possessing, selling, and using methamphetamine.
Without objection, the court ruled Officer Angle was qualified to testify as an expert
for purposes of identification of methamphetamine, sale of such drug, and the
methods of ingesting the same.
Officer Angle testified generally about the factors he considered which would
indicate that a person possessed methamphetamine for sale, the quantities typically
used as a single dose, and the cost of different quantities. The prosecutor asked about
the facts of the current case, including the seizure of $2,192 in cash.
“[Prosecutor]: And you reviewed the facts of this case with myself, and I
think you reviewed them with Officer Lang at the time of the arrest?
“[Officer Angle]: Yes.
“[Prosecutor]: Based on the fact that a person possessed 3.82 grams of
methamphetamine, would you be able to form an opinion, in your expert opinion,
whether or not that was possessed for sale or possessed for personal use?
“[Officer Angle]: I could. My opinion is that it was possessed for sale.
“[Prosecutor]: What is that opinion based on?
“[Officer Angle]: In this case that opinion is based on the amount of
methamphetamine [[Schultz]] possessed, the amount of currency and its
denominations that he had in his possession. [¶] The lack of a methamphetamine
pipe that, I believe, he spontaneously stated during that time that he smoked
methamphetamine. If he smoked methamphetamine he would have a pipe on him or
close to him, I would assume, and he also had a prior conviction for being arrested
for possession of methamphetamine for sale.
“[Prosecutor]: Does the fact that [[Schultz]] was under the influence or tested
positive for methamphetamine change your opinion?
“[Officer Angle]: No.
“[Prosecutor]: Why not?
“[Officer Angle]: Just like I testified earlier, I believe that everyone who uses
methamphetamine sells methamphetamine.
“[Prosecutor]: If there was a claim that the cash came from a rental property
where someone gave [[Schultz]] cash for rent, would that change your opinion?
“[Officer Angle]: No.
“[Prosecutor]: Why not?
“[Officer Angle]: Well, if he had a receipt for the money, then that’s totally
[a] separate subject. [¶] It doesn’t change the fact that he had a large amount of
methamphetamine, that is a lot more than most people have for personal use.
“[Prosecutor]: Would it change your opinion if I told you that there were two
cell phones located in his car?
“[Officer Angle]: It might strengthen my opinion. Just based on most people
who are either mid level or larger level type drug dealers may have several different
phones on them.”
Officer Angle opined that 3.82 grams alone was sufficient to support his
opinion that the methamphetamine was possessed for sale.
8
Defense counsel posed no objections.
Relying primarily upon People v. Killebrew (2002) 103 Cal.App.4th 644,
[Schultz] complains that Officer Angle gave more than just an expert opinion based
on hypothetical facts, violating the rule that an expert may not testify that a defendant
had specific knowledge or possessed a specific intent.
Initially, we consider whether the contention has been forfeited. [Schultz]
claims that his motion in limine to exclude the expert’s testimony was sufficient to
preserve the issue. We disagree.
“‘[A] motion in limine to exclude evidence is a sufficient manifestation of
objection to protect the record on appeal when it satisfies the basic requirements of
Evidence Code section 353, i.e.: (1) a specific legal ground for exclusion is advanced
and subsequently raised on appeal; (2) the motion is directed to a particular,
identifiable body of evidence; and (3) the motion is made at a time before or during
trial when the trial judge can determine the evidentiary question in its appropriate
context.’” (People v. Rowland (1992) 4 Cal.4th 238, 264, fn. 3 .)
[Schultz] sought exclusion of an officer’s testimony on [Schultz’s] possession
for sale on two grounds. First, [Schultz] claimed any such conclusion is a legal
judgment, based on a factual determination of the evidence and one for the jury to
decide. Although [Schultz’s] intent was an issue for the jury, a qualified police
officer may give an expert opinion on whether possession of drugs is for the purpose
of sale. (People v. Carter (1997) 55 Cal.App.4th 1376, 1377-1378.) [Schultz’s]
second ground was that a witness giving an opinion had to be qualified as an expert
and if not, the opinion was inadmissible lay opinion evidence. Here, Officer Angle
qualified as an expert. [Schultz] did not question the officer’s qualifications and
cannot do so now. [Schultz’s] motion in limine was insufficient to preserve his claim
on appeal that Officer Angle’s testimony was improper expert testimony. [Schultz]
has forfeited the issue. (Evid.Code, § 353; People v. Neely (2009) 176 Cal.App.4th
787, 794-795.)
To avoid forfeiture, [Schultz] challenges counsel’s failure to object when the
officer testified. To establish ineffective assistance of counsel, [Schultz] must
demonstrate that counsel’s performance was deficient and that [Schultz] suffered
prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691692 [80 L.Ed.2d 674, 693, 696]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.)
Defense counsel’s determination whether to object to evidence is a tactical decision
which is entitled to substantial deference; “‘failure to object seldom establishes
counsel's incompetence.’” (People v. Majors (1998) 18 Cal.4th 385, 403.)
Killebrew concluded that based on the facts of that case, the gang expert’s
opinion on the defendants’ subjective knowledge of the presence of a gun in the car
and whether it was jointly possessed was inadmissible. (People v. Killebrew, supra,
103 Cal.App.4th at pp. 651-652, 658.) Here, Officer Angle had testified generally
about possession of methamphetamine for sale, the factors that indicate sales, and the
factors that indicate personal use. Officer Angle identified the amount possessed as
the primary factor indicating whether it was possessed for sale or personal use. He
9
testified about a single dose (.1 to .2 grams), daily use (.2 to .5 grams), and that three
grams in a day is not usual.
Had defense counsel objected to the particular questions now identified, the
objection would have been sustained, but the testimony would not have been
excluded but instead would have to have been reframed in hypothetical form. The
error in the form of questions that elicited the officer’s now objectionable expert
testimony was harmless. The questions in hypothetical form and the officer’s
answers without referring to [Schultz] by name would not have changed the facts that
[Schultz] possessed 3.82 grams of methamphetamine along with $2,192 in cash in
particular denominations and lacked any drug paraphernalia indicating personal use.
[Schultz] has failed to demonstrate that “‘it is reasonably probable that a result more
favorable to the appealing party would have been reached in the absence of the
error.’” (People v. Prieto (2003) 30 Cal.4th 226, 247.).27
Before this Court may grant relief, it must find that any constitutional error was not
harmless. Thus, even assuming that the admission of Officer Angle’s testimony in the form in
which it was introduced also constituted a violation of the Due Process Clause,28 Schultz is not
entitled to relief if its admission was harmless. Specifically, under Brecht, this Court must find
that the error “had [a] substantial and injurious effect or influence in determining the
[outcome].”29 The determination by a state court that a constitutional error is harmless is itself
subject to the “unreasonableness” test of AEDPA.30 While numerous cases applying Brecht refer
27
Schultz, 2010 WL 3966798 at *3-5.
28
A questionable assumption in light of the recent Supreme Court decision applying
Federal Rule of Evidence 703 that an expert’s opinion need not be based upon “hypothetical
questions” to avoid violating the Confrontation Clause, Williams v. Illinois, 132 S. Ct. 2221,
2234-35 (2012) (plurality), and its reluctance to place broad constitutional due process
restrictions on state evidentiary rulings absent an otherwise applicable specific constitutional
guarantee, see, e.g., McGuire, 502 U.S. at 72-73; Crane v. Kentucky, 476 U.S. 683, 689 (1986);
Henderson v. Kibbe, 431 U.S. 145, 154 (1977); Donnelly v. DeChristoforo, 416 U.S. 637, 643
(1974).
29
Brecht v. Abrahamson, 507 U.S. 619, 622 (1993).
30
Fry v. Pliler, 551 U.S. 112, 119-20 (2007).
10
to the overwhelming evidence of the petitioner’s guilt,31 this tends to overstate the quantum of
evidence necessary to establish harmless error under Brecht.32 “Only if the record demonstrates
that the jury’s decision was substantially influenced by the error or there is grave doubt about
whether an error affected a jury will [Schultz] be entitled to relief.”33 In applying Brecht, this
Court assesses the strength of the state’s evidence apart from the erroneously admitted
evidence.34 The Ninth Circuit decision in Valerio35 teaches us that the “substantial and injurious
effect or influence” test of Brecht presents a higher bar for the state to hurdle than the sufficiency
of the evidence test in Jackson.36 Respondent, rather than Schultz, bears the risk of doubt in a
Brecht harmless error analysis.37 Thus, Respondent must provide this Court with a “fair
assurance” that there was no substantial and injurious effect on the verdict.38
Because the proper test is whether the error had a “substantial and injurious effect on the
verdict,” it is not enough that the form in which the expert’s testimony was presented was
improper. The critical factor in this context is that the substance of the testimony was not
31
See e.g., Moses v. Payne, 543 F.3d 1090, 1100 (9th Cir. 2008); Larson v. Palmateer,
515 F.3d 1057, 1064 (9th Cir. 2008); Jackson v. Brown, 513 F.3d 1057, 1082 (9th Cir. 2008);
Parle v. Runnels, 505 F.3d 922, 928 (9th Cir. 2007).
32
See, e.g., Brecht, 507 U.S. at 639 (finding harmless error in part because “the State's
evidence of guilt was, if not overwhelming, certainly weighty”).
33
Sechrest v. Ignacio, 549 F.3d 789, 808 (9th Cir. 2008) (internal quotation marks and
citation omitted).
34
Sims v. Brown, 425 F.3d 560, 570-71 (9th Cir. 2005).
35
Valerio v. Crawford, 306 F.3d 742, 761-62 (9th Cir. 2002) (en banc).
36
Jackson v. Virginia. 443 U.S. 307, 319 (1979) (emphasis in the original).
37
See O’Neal v. McAninch, 513 U.S. 432, 439 (1995).
38
See Valerio 306 F.3d at 761-62; see also O’Neal, 513 U.S. at 443 (“The State normally
bears responsibility for the error that infected the initial trial.”).
11
inadmissible—the same conclusion based upon the same facts could have been presented to the
jury in proper form, i.e., hypothetically instead of case specific. Consequently, it cannot be said
that its admission had a substantial and injurious effect on the verdict.
Under Strickland, to demonstrate ineffective assistance of counsel, Schultz must show
both that his counsel’s performance was deficient and that the deficient performance prejudiced
his defense.39 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.”40 Schultz
must show that defense counsel’s representation was not within the range of competence
demanded of attorneys in criminal cases, and that there is a reasonable probability that, but for
counsel’s ineffectiveness, the result would have been different.41 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.42 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,
39
Strickland v. Washington, 466 U.S. 668, 687 (1984).
40
Id.
41
Hill v. Lockhart, 474 U.S. 52, 57 (1985).
42
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).
12
the more leeway courts have in reaching outcomes in case-by-case
determinations”).43
It is through this doubly deferential lens that a federal habeas court reviews Strickland claims
under the § 2254(d)(1) standard.44
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.”45
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.46
In this case, as the California Court of Appeal noted, because the substance of the
expert’s testimony was not inadmissible and an objection would not have materially altered the
substance of the testimony presented to the jury, the error in its form was harmless.
Consequently, this Court cannot say that the decision of the California Court of Appeal was
“contrary to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States” or “was based on an unreasonable
43
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).
44
Id. (citing Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003)).
45
Richter, 131 S. Ct. at 785 (emphasis in the original).
46
Id. at 786 (emphasis added).
13
determination of the facts in light of the evidence presented in the State court proceeding.”47
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
Schultz’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. Schultz is not entitled to relief under this first ground.
Ground 2: Cumulative Error
In his Amended Petition, as he did before the California Court of Appeal, Schultz
contends that even if each of the errors raised on direct appeal taken individually was harmless,
the cumulative effect of the multiple errors rendered his trial fundamentally unfair and resulted in
a miscarriage of justice. In rejecting Schultz’s arguments, the California Court of Appeal held:
Cumulative Error
Relying primarily upon People v. Hill (1998) 17 Cal.4th 800, [Schultz] argues
cumulative error requires reversal. We disagree.
Here, we have concluded: (1) the court did not abuse its discretion in
admitting [Schultz’s] prior conviction for possession of methamphetamine for sale;
(2) no prejudicial error in the form of questioning/responses of the prosecutor’s
expert witness; (3) no abuse of discretion in finding Hirsch not qualified to give an
expert opinion on intent to sell; and (4) no coercive conduct by the trial court when
the jury declared it was deadlocked on count 2. Thus, there was no cumulative
prejudicial error requiring reversal. (See People v. Martinez (2010) 47 Cal.4th 911,
959.).48
Other than the admission of the expert’s testimony vis-a-vis intent, Schultz has not
properly raised any issue before this Court.49 Consistent with the rule that prisoner pro se
47
28 U.S.C. § 2254(d).
48
Schultz, 2010 WL 3966798 at *9.
49
In his initial Petition Schultz raised five of the grounds he raised on direct appeal: (1)
(continued...)
14
pleadings are given the benefit of liberal construction,50 and in order to adequately address
Schultz’s cumulative error claim, this Court must nonetheless examine the other three grounds
raised on direct appeal—that the trial court: (1) failed to “sanitize” the nature of his prior drug
conviction for possession of methamphetamine for sale; (2) erred in finding that a defense
witness did not qualify as an expert; and (3) improperly coerced the jury verdict.51 The
California Court of Appeal addressed and rejected each of these issues on the merits.
Prior Drug Conviction.
Schultz did not challenge the use of a prior conviction for impeachment, only how it was
described.52 The California Court of Appeal rejected Schultz’s claim, holding:
The record does not support [Schultz’s] claim of an abuse of discretion.
Credibility was critical in this case because the issue was whether [Schultz]
possessed the methamphetamine for personal use or sale. The trial court could
reasonably have determined the jury was entitled to know the nature of the prior drug
conviction in order to accurately judge [Schultz’s] credibility. Sanitization may have
led the jury to conclude that [Schultz’s] crime was especially egregious for the trial
49
(...continued)
the trial court erred in failing to sanitize Schultz’s prior conviction; (2) trial court error in
admitting the drug expert’s testimony [first ground in the Amended Petition]; (3) error denying
the testimony of a drug counselor as an expert; (4) that the trial court coerced the jury into
finding guilt; and (5) cumulative error [second ground in the Amended Petition]. The Amended
Petition superceded and replaced the original Petition, rendering it of no further force or effect. 6
Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Fed. Prac. & Proc. Civ., § 1476 (2d
ed.); see Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Loux v. Ray, 375 F.2d 55, 57
(9th Cir. 1967). Accordingly, the only issues properly before this Court are those raised in the
Amended Petition.
50
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Porter v. Ollison, 620 F.3d
952, 958 (9th Cir. 2010).
51
Schultz, 2010 WL 3966798 at *1.
52
Id. at *2.
15
court not to have identified it. The jurors were thus able to decide for themselves
how to factor [Schultz’s] prior drug conviction into an evaluation of his credibility.53
Under Federal evidentiary rules a trial court must weigh the probative value of the nature
of a prior conviction to a contested issue against its prejudicial effect.54 In so doing, the trial
court is given significant latitude and its rulings are reviewed for an abuse of discretion.55
Although the Ninth Circuit has suggested that an abuse of discretion may also amount to a
constitutional violation,56 the Supreme Court has never held that an 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 proceeding it is not.57 Thus, because no constitutional basis for “sanitizing” the
testimony has been asserted or is otherwise apparent, Schultz has failed to present a question of
constitutional dimension.
Qualification of Defense Witness as an Expert.
The trial court denied defense counsel’s request to qualify the drug counselor who treated
Schultz as an expert witness and to have her offer an opinion as to the amount of drugd Schultz
possessed and whether it was possessed for sale or personal use. Noting that under California
53
Id. at *3.
54
See Fed. R. Evid. 403, 404.
55
Old Chief v. United States, 519 U.S. 172, 174 n.1, 182-83 (1997).
56
See Schell v. Witek, 218 F.3d 1017, 1025 (9th Cir. 2000) (en banc).
57
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.
§ 2254(d)(1).”).
16
law, the rulings on the qualifications of witnesses are reviewed for an abuse of discretion, the
California Court of Appeal found no abuse of discretion in limiting the testimony of the
counselor to her experience on the use and possession of methamphetamine, but not its sale.58
It is well settled that, under the Sixth Amendment, an accused has the right to present
witnesses, testimony and other evidence in his or her defense.59 However, “[t]he accused does
not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise
inadmissible under standard rules of evidence.”60 States have considerable latitude under the
Constitution to establish rules excluding evidence from criminal trials.61 “Thus, a trial judge may
exclude or limit evidence to prevent excessive consumption of time, undue prejudice, confusion
of the issues, or misleading the jury. The trial judge enjoys broad latitude in this regard, so long
as the rulings are not arbitrary or disproportionate.”62 Like California, under federal law the
decision of the trial court on the admissibility of an expert opinion is reviewed for an abuse of
discretion.63 Thus, this argument also fails to present a question of constitutional magnitude.
Jury Coercion.
The California Court of Appeal, after reciting the facts, rejected Schultz’s argument:
58
Schultz, 2010 WL 3966798 at *7.
59
See Washington v. Texas, 388 U.S. 14, 19 (1967).
60
Taylor v. Illinois, 484 U.S. 400, 409-10 (1988).
61
Holmes v. South Carolina, 547 U.S. 319, 324 (2006).
62
Menendez v. Terhune, 422 F.3d 1012, 1033 (9th Cir. 2005) (citations omitted); see
Montana v. Egelhoff, 518 U.S. 37, 42-43 (1996) (holding due process rights are not violated by
exclusion of relevant evidence where probative value is outweighed by danger of prejudice or
confusion).
63
Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142-43 (1997).
17
At 4:10 p.m. on July 8, 2009, the jury retired to begin deliberations.
At 3:26 p.m. on July 9, 2009, the jury announced that it had reached a verdict
on count 1 (transportation of methamphetamine) but was deadlocked on count 2
(possession of methamphetamine for sale). The court queried whether further
deliberations would result in a verdict. The foreperson responded, “In my personal
opinion, no.” The court asked whether there was anything the court could do to assist
the jury in reaching a verdict, such as rereading instructions. The foreperson
responded, “There seems to be [a] question on more definition on intent to sell.” The
court interrupted, again suggesting rereading of testimony or further argument by
counsel. The foreperson asked whether the jury could “caucus amongst [them]selves
to ask those individuals” whether rereading or argument would assist. The court then
polled the jury, asking each juror whether it was reasonably probable that they would
reach a verdict with further deliberations and each answered negatively. When asked
about the number of votes, the foreperson stated that they had taken three votes.
When asked about the numerical splits, the foreperson responded in writing but the
record on appeal does not reflect the splits. The court reviewed the numbers and
asked the jury to return to the jury room and discuss whether there was anything it
needed to assist them. After the jury was excused, defense counsel asked to see the
numerical splits.
About 5:00 p.m., the jury returned to the courtroom and the foreperson
requested that the court reread the instruction on bias and that the prosecutor further
argue on the issue of intent to sell. The court determined that it would further
instruct and that both counsel would argue the next morning. The court then
adjourned for the day, excusing the jury. Defense counsel raised no objection.
The next morning, the jury reached a verdict without further instruction and
argument. After the fact, defense counsel objected to further argument and to the
jury continuing its deliberations but conceded the point was moot.
The only basis for [Schultz’s] claim of coercion is that the jury was ordered
to continue to deliberate despite each juror’s assurance that further deliberation
would not be fruitful. [Schultz] characterizes this as “inadvertent coercion.”
“Under [Penal Code] section 1140, the trial court is precluded from
discharging the jury without reaching a verdict unless both parties consent or ‘unless,
at the expiration of such time as the court may deem proper, it satisfactorily appears
that there is no reasonable probability that the jury can agree.’ . . . ‘[T]he
determination whether there is reasonable probability of agreement rests in the sound
discretion of the trial court. [Citation.] The court must exercise its power, however,
without coercion of the jury, so as to avoid displacing the jury’s independent
judgment “in favor of considerations of compromise and expediency.” [Citation.]’”
(People v. Sheldon (1989) 48 Cal.3d 935, 959.)
“Coercion has been found where the trial court, by insisting on further
deliberations, expressed an opinion that a verdict should be reached.” (People v.
Rodriguez (1986) 42 Cal.3d 730, 775.)
Here, the court did not say anything to suggest that the minority had to
compromise and change in order to reach a verdict. The court asked twice whether
18
additional instruction and argument would be helpful. After seeing the three splits,
the court concluded the same would be helpful despite the jurors indicating
otherwise. The record does not reflect the splits. Rather than conveying to the jury
that it must deliberate until a verdict was reached, the court made suggestions in
hopes of assisting the deliberations. Further, after the court stated that it would
further instruct and have counsel argue, the jury reached a verdict the next morning
without benefit of instruction or argument. Thus, the jury continued its deliberations,
focusing on the evidence. The trial court did not coerce the verdict.64
Federal courts review a trial judge’s decision not to declare a mistrial because of a jury
deadlock for an abuse of discretion.65 Indeed, a jury’s statement that it is deadlocked is not
sufficient by itself to warrant a mistrial.66 In this case, because the trial court did not provide any
further instruction to the jury prior to the jury reaching its decision, the trial gave no
supplemental instruction that might be considered coercive.67 In this case, by no amount of
linguistic gymnastics could one find that the action taken by the trial court was coercive, whether
denominated deliberate or inadvertent.
“While the combined effect of multiple errors may violate due process even when no
single error amounts to a constitutional violation or requires reversal, habeas relief is warranted
only where the errors infect a trial with unfairness.”68 This Court has considered and rejected
each of the errors Schultz seeks to cumulate as not raising a constitutional issue. Furthermore,
64
Schultz, 2010 WL 3966798 at *8-9.
65
United States v. Banks, 506 F.3d 756, 770 (9th Cir. 2007) (citing United States v. Allen,
341 F.3d 870, 891 (9th Cir. 2003); United States v. Green, 962 F.2d 938, 944 (9th Cir. 1992));
United States v. Cawley, 630 F.2d 1345, 1348-49 (9th Cir. 1980).
66
Green, 962 F.2d at 944 (citing United States v. Sommerstedt, 752 F.2d 1494, 1498 (9th
Cir.), amended, 760 F.3d 999 (9th Cir. 1985)).
67
See, e.g., United States v. Williams, 547 F.3d 1187, 1206-07 (9th Cir. 2008) (finding
coercion under the facts presented where the trial court gave a supplemental charge under Allen
v. United States, 164 U.S. 492, 501 (1896)).
68
Peyton v. Cullen, 658 F.3d 890, 896-97 (9th Cir.2011) (citing Chambers v. Mississippi,
410 U.S. 284, 298, 302-03 (1973)).
19
even if it were error under state law, this Court cannot say Schultz’s trial was rendered
fundamentally unfair.69 Schultz is not entitled to relief under his second ground.
V. CONCLUSION AND ORDER
Schultz is not entitled to relief on either ground raised in his Amended 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.70 Any further request for a Certificate of Appealability must be addressed to the
Court of Appeals.71
The Clerk of the Court is to enter judgment accordingly.
Dated: November 14, 2012.
/s/ James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
United States District Judge
69
Peyton, 658 F.3d at 897.
70
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))).
71
See Fed. R. App. P. 22(b); Ninth Circuit R. 22-1.
20
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