Howard v. Martel

Filing 70

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 04/10/15 recommending that the petition for writ of habeas corpus [49-1] be denied. Referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GERALD HOWARD,

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Petitioner,

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No. 2:11-cv-0991 JAM CKD P

v.

FINDINGS AND RECOMMENDATIONS

M. MARTEL,

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Respondent.

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Petitioner is a state prisoner proceeding through counsel with a petition for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. This action proceeds on the amended petition filed

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July 20, 2012. (ECF No. 49-1 (“Ptn.”).) Petitioner challenges his 2008 conviction for first degree

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murder and theft, for which he was sentenced to a prison term of life without the possibility of

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parole. (Id. at 5.)1

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Petitioner claims that: (1) because law enforcement officers obtained his statement in

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violation of his federal due process rights, the statement should have been suppressed; (2) he was

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denied his Sixth Amendment right to present a full defense when the trial court excluded

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exculpatory evidence; and (3) he was denied his Sixth Amendment right to effective assistance of

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Citations refer to page numbers assigned by the court’s docketing system.
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trial counsel when his attorney failed to investigate and present a “diminished actuality” defense.

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Respondent has filed an answer to the petition (ECF No. 59), and petitioner has filed a

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traverse (ECF No. 60-1). Upon careful consideration of the record and the applicable law, the

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court will recommend that the petition be denied.

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BACKGROUND
I. Facts
In its affirmation of the judgment on appeal, the California Court of Appeal, Third
Appellate District, set forth the factual background as follows:
Defendants Gerald Howard and Carmel Murphy lured Donte
Rogers to a park, shot him in the head and abdomen, and emptied
the pockets of his pants. In a joint trial with separate juries, Howard
was found guilty of first degree murder while lying in wait and
misdemeanor petty theft, both while armed. Murphy was found
guilty of first degree murder and robbery, both while armed.
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FACTUAL AND PROCEDURAL BACKGROUND
About 10:30 p.m. one night in February 2005, Rogers drove
Monica Bracamonte (who was the sister of Rogers’s brother’s
girlfriend) to the store in his Cadillac to get some milk for
Bracamonte’s niece. At the store, Rogers received a phone call
from Howard to pick him up at Howard’s house and take him to the
park to meet Howard’s girlfriend. After picking up Howard, Rogers
drove with Howard and Bracamonte to the park. At the park,
Howard walked to a nearby building, talked on the phone for a few
minutes, came back to the car, and asked Rogers to get out. Rogers
complied, and he and Howard walked around the building out of
Bracamonte’s sight. Less than five minutes later, Bracamonte heard
two gunshots.
About 10 minutes after the gunshots, Howard returned to the car
with Murphy, and he asked Bracamonte to get out of the car.
Thinking nothing of it, Bracamonte complied. Murphy got in the
car where Bracamonte had been sitting. Howard told Bracamonte
that Rogers wanted to speak with her. As Bracamonte walked to
the building with Howard behind her, she heard a clicking noise
and something fall to the ground. She turned around and saw
Howard, who was now wearing gloves, pick up a gun off the
ground and place it under his arm. He told her to go back to the car,
and she complied.
Howard drove Rogers’s Cadillac a couple blocks to where
Murphy’s Jeep was parked. Murphy got out of the Cadillac and into
her Jeep. Murphy followed Howard as he dropped off Bracamonte
at Bracamonte's sister’s apartment. As Bracamonte got out of the
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Cadillac, she heard Murphy say, “‘Pop her too.’”
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Bracamonte got to the apartment, she told her sister and Rogers’s
brother what had happened. Rogers’s brother tried to call Rogers
but received no answer.
Rogers’s brother and Bracamonte’s sister went to the park and
found Rogers’s dead body. He had been shot in the back of the head
and in the abdomen. His pants were pulled down and one of his
pockets turned inside out.

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Howard and Murphy were arrested on February 10, 2005. They
were interviewed by police separately and then placed in an
interview room together.

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Howard's Defense

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Howard’s defense was that he was the “duped pawn” and Murphy
was the “queen.” To support his defense, he introduced the
testimony of Tawon Woodruff, who had met Howard on a number
of occasions. According to Woodruff, Howard was “weakminded,” unintelligent, and did things he did not want to do.
Howard also introduced the testimony of his sister, Leslie Knight.
According to Knight, Howard was slow to understand things and
gullible.

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People v. Howard, 2010 WL 54290 (Cal. App. 3 Dist. Jan. 8, 2010). The facts as set forth by the

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state court of appeal are presumed correct, 28 U.S.C. §2254(e)(1).

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II. Procedural History

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On March 20, 2008, following a trial, a jury in the Sacramento County Superior Court

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found petitioner guilty of first degree murder with special circumstance (Cal. Pen. Code § 187)

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and theft (Cal. Pen. Code § 484). (Ptn. At 5.)

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Petitioner appealed his conviction to the California Court of Appeal, Third Appellate

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District. (Ptn. At 6.) On January 8, 2010, the California Court of Appeal affirmed the judgment.

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(Id.) Petitioner then filed a petition for review in the California Supreme Court. On April 22,

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2010, the California Supreme Court denied review. (Id.)

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Proceeding pro se, petitioner commenced this federal action on April 13, 2011. (ECF No.

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1.) Respondent filed an answer to the original petition. (ECF No. 16.) Along with his traverse,

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petitioner filed a motion for appointment of counsel. (ECF Nos. 17, 18.) The court appointed

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counsel for petitioner on August 26, 2011. (ECF No. 20.)
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On July 20, 2012, petitioner through counsel filed a proposed amended petition and a

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motion to stay this action while he exhausted state remedies as to a new claim that trial counsel

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was ineffective in failing to present a “diminished actuality” defense. (ECF No. 49.) On

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September 27, 2012, the court granted petitioner’s motion and administratively stayed this action

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pending the exhaustion of state remedies. (ECF No. 54.)

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Petitioner filed a petition for writ of habeas corpus in the California Supreme Court,

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raising the “diminished actuality” claim. (ECF No. 58.) Pursuant to a request by the state

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supreme court under Rule 8.385(b) of the California Rules of Court, both the state Attorney

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General’s office and the Sacramento County Office of the Public Defender filed informal

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responses to the petition. (ECF Nos. 58-1, 58-2; see ECF No. 58-4 at 2.) Petitioner filed a reply

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to the informal responses. (ECF No. 58-3.) On August 14, 2013, the California Supreme Court

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denied the petition. (ECF No. 56-1.)

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Two weeks later, the undersigned re-opened the instant federal action. (ECF No. 57.)

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Respondent filed an answer to the amended petition (ECF No. 59), and petitioner filed a traverse

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(ECF No. 60-1.)

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ANALYSIS
I. AEDPA
The statutory limitations of federal courts’ power to issue habeas corpus relief for persons

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in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective

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Death Penalty Act of 1996 (AEDPA). The text of § 2254(d) states:

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An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the merits
in State court proceedings unless the adjudication of the claim-

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(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or

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(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.

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As a preliminary matter, the Supreme Court has recently held and reconfirmed “that §

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2254(d) does not require a state court to give reasons before its decision can be deemed to have

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been ‘adjudicated on the merits.’” Harrington v. Richter, 131 S. Ct. 770, 785 (2011).

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Rather, “when a federal claim has been presented to a state court and the state court has denied

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relief, it may be presumed that the state court adjudicated the claim on the merits in the absence

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of any indication or state-law procedural principles to the contrary.” Id. at 784-785, citing Harris

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v. Reed, 489 U.S. 255, 265 (1989) (presumption of a merits determination when it is unclear

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whether a decision appearing to rest on federal grounds was decided on another basis). “The

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presumption may be overcome when there is reason to think some other explanation for the state

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court’s decision is more likely.” Id. at 785.

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The Supreme Court has set forth the operative standard for federal habeas review of state

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court decisions under AEDPA as follows: “For purposes of § 2254(d)(1), ‘an unreasonable

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application of federal law is different from an incorrect application of federal law.’” Harrington,

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supra, 131 S. Ct. at 785, citing Williams v. Taylor, 529 U.S. 362, 410 (2000). “A state court’s

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determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded

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jurists could disagree’ on the correctness of the state court’s decision.” Id. at 786, citing

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Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). Accordingly, “a habeas court must

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

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

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

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“Evaluating whether a rule application was unreasonable requires considering the rule’s

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specificity. The more general the rule, the more leeway courts have in reaching outcomes in

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case-by-case determinations.’” Id. Emphasizing the stringency of this standard, which “stops

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short of imposing a complete bar of federal court relitigation of claims already rejected in state

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court proceedings[,]” the Supreme Court has cautioned that “even a strong case for relief does not

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mean the state court’s contrary conclusion was unreasonable.” Id., citing Lockyer v. Andrade,

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538 U.S. 63, 75 (2003).

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The undersigned also finds that the same deference is paid to the factual determinations of

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state courts. Under § 2254(d)(2), factual findings of the state courts are presumed to be correct

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subject only to a review of the record which demonstrates that the factual finding(s) “resulted in a

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decision that was based on an unreasonable determination of the facts in light of the evidence

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presented in the state court proceeding.” It makes no sense to interpret “unreasonable” in §

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2254(d)(2) in a manner different from that same word as it appears in § 2254(d)(1) – i.e., the

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factual error must be so apparent that “fairminded jurists” examining the same record could not

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abide by the state court factual determination. A petitioner must show clearly and convincingly

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that the factual determination is unreasonable. See Rice v. Collins, 546 U.S. 333, 338 (2006).

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The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable

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nature of the state court decision in light of controlling Supreme Court authority. Woodford v.

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Viscotti, 537 U.S. 19 (2002). Specifically, the petitioner “must show that the state court’s ruling

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on the claim being presented in federal court was so lacking in justification that there was an error

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well understood and comprehended in existing law beyond any possibility for fairminded

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disagreement.” Harrington, supra, 131 S. Ct. at 786-787. Clearly established” law is law that has

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been “squarely addressed” by the United States Supreme Court. Wright v. Van Patten, 552 U.S.

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120, 125 (2008). Thus, extrapolations of settled law to unique situations will not qualify as

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clearly established. See e.g., Carey v. Musladin, 549 U.S. 70, 76 (2006) (established law not

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permitting state sponsored practices to inject bias into a criminal proceeding by compelling a

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defendant to wear prison clothing or by unnecessary showing of uniformed guards does not

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qualify as clearly established law when spectators’ conduct is the alleged cause of bias injection).

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The established Supreme Court authority reviewed must be a pronouncement on constitutional

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principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules

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binding only on federal courts. Early v. Packer, 537 U.S. 3, 9 (2002).

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The state courts need not have cited to federal authority, or even have indicated awareness

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of federal authority in arriving at their decision. Early, supra, 537 U.S. at 8. Where the state

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courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal

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court will independently review the record in adjudication of that issue. “Independent review of
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the record is not de novo review of the constitutional issue, but rather, the only method by which

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we can determine whether a silent state court decision is objectively unreasonable.” Himes v.

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Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
“When a state court rejects a federal claim without expressly addressing that claim, a

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federal habeas court must presume that the federal claim was adjudicated on the merits – but that

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presumption can in some limited circumstances be rebutted.” Johnson v. Williams, 133 S. Ct.

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1088, 1096 (2013). “When the evidence leads very clearly to the conclusion that a federal claim

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was inadvertently overlooked in state court, § 2254(d) entitles the prisoner to” de novo review of

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the claim. Id. at 1097.

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II. Petitioner’s Claims

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A. Miranda Violation

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1. Facts

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Petitioner claims that, while he was in police custody on February 10 and 11, 2005, law

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enforcement officers obtained incriminating statements in violation of his Fifth Amendment

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privilege against self-incrimination. Citing the fact that petitioner was in custody for almost four

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hours, intermittently interacting with police, before he was read his Miranda2 rights, petitioner

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argues that this “midstream Miranda warning . . . did not effectively apprise the suspect of his

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rights.” (Ptn. at 24, citing United States v. Williams, 435 F.3d 1148, 1157 (9th Cir. 2006).)

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Petitioner argues that he did not knowingly waive his privilege against self-incrimination. (Id. at

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25-26.) He asserts that his statements to law enforcement were therefore inadmissible and should

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have been excluded at trial. (Id. at 23.)

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The state court of appeal set forth the relevant facts as follows:

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At 11:18 a.m. on February 10, 2005, detectives met with Howard in
an interview room at the police station. They patted him down,
offered him chips, told him to direct a question he had about using
the telephone to “other detectives coming down here,” and arranged
for him to use the restroom. In searching Howard, one of the
detectives noted Howard’s size. Howard explained he was six feet
five inches tall and wore size 16 shoes. Howard said he “belong[ed]
on a football field.” The detective asked if Howard ever [p]lay[ed]

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Miranda v. Arizona, 384 U.S. 436 (1966).
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college ball.” Howard said he was “signed up to go” to “Mesa
College.” The detective responded as follows: “Really? Damn.
Hopefully – hopefully you call Mesa back some day. That'd be
good.”

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The detectives then left the room. While alone in the room, Howard
stated, “What is that supposed to mean? What the fuck is going on,
man? What the fuck? [Murphy], what the fuck did you do?

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Detectives reentered the room. They gave Howard chips, a burrito,
and water. After eating, Howard fell asleep. The detectives woke
him up around 2:45 p.m. They told him they had finished talking to
everybody else. They knew about “[Rogers] stealing the car,” and
“you and [Murphy] meeting up ... [a]nd figuring out how you're
going to get the car back.” They falsely stated they had a videotape
from the park security camera that showed what happened that
night. They added that Murphy was going to take them on a “road
trip” to show them the location of the gloves.

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A detective further explained they were “in here to kind of talk to
[Howard] and get [his] side of stuff.” The detective would “like to
talk to [him]” but “[i]n order for [the detective] to talk to [Howard],
[the detective] [had] to advise [Howard] of [his] rights.” Another
detective interjected that there were at least two sides to every story
and they did not know Howard’s side. A detective then told
Howard he had the right to remain silent, anything he said could be
used against him in court, and he had the right to an attorney.

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The detective asked if Howard “underst[oo]d that?” Howard
nodded, and the detective said “[o]kay” and invited Howard to let
them know what happened. The detectives then began a lengthy
recorded interview with Howard.

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Howard, 2010 WL 54290 at *5. This summary is consistent with this court’s review of the

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record. See Lod. Docs. 21, 22 (videotaped police interview of petitioner).

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2. State Court Opinion
Addressing the merits of petitioner’s Miranda claim3, the state court of appeal reasoned as

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follows:

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The Detectives Did Not Withhold Advising Howard Of His Miranda
Rights And His Waiver Was Voluntary

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Howard contends the “police tried to circumvent Miranda and
undermine the will of a suspect to resist questioning” and
analogizes the interrogation to that in Missouri v. Seibert (2004)

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Where there is no reasoned decision from the state’s highest court, the court “looks through” to
the last reasoned state court decision. Y1st v. Nunnemaker, 501 U.S. 797, 801–806 (1991); Van
Lynn v. Farmon, 347 F.3d 735 (9th Cir. 2003).
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542 U.S. 600. Seibert held that when Miranda warnings are
withheld from a defendant until after a confession is elicited, those
Miranda warnings are ineffective and the statements inadmissible.
(Seibert, at pp. 615-617.)

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This case is not Seibert. The police did not withhold Miranda
warnings until Howard confessed. In fact, Howard made only one
arguably incriminating statement before the Miranda warnings were
given, and that was when there was no interrogation and when he
was alone in the interview room. Specifically, after the officer
stated that “hopefully [Howard could] call Mesa [College] back
some day” and left the room, Howard stated, “What is that
supposed to mean? What the fuck is going on, man? What the fuck?
[Murphy], what the fuck did you do?” Howard's statement was
spontaneous and did not follow words or actions reasonably likely
to elicit an incriminating response. (Rhode Island v. Innis (1980)
446 U.S. 291, 300-301.)

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Howard further contends the detectives “deprived [him] of access to
a telephone[,] ... delayed his interview, lied to him and accused him
of assisting ... crimes in an effort to undermine his free will.” To
the extent Howard’s argument is that his Miranda waiver was
involuntary, it too fails.

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A court considers the totality of the circumstances surrounding an
interrogation in deciding whether a defendant effectively waived
his Miranda rights. (People v. Whitson (1998) 17 Cal.4th 229, 245247.) Here, the police allowed Howard to eat and use the
bathroom, made small talk with him, and then allowed him to take a
nap. When they woke him up, they confronted him with a scenario
where they claimed to know details about Howard’s history and the
crime – some true and some not – and then said they wanted to
“talk to [him]” “if [he] want[ed] to give [them] [his] side of the
story” but had to “advise [him] of [his] rights.” Although Howard
claims the detectives’ comments led him to “believe he had no
choice; he had to give his ‘side of the story,’” this is not a fair
representation of the interview. The detectives specifically said
they would “like to talk to [him]” “if [he] want[ed] to give [them]
[his] side of the story....” On this record, Howard's argument fails.

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Howard, 2010 WL 542980 at **5-6.

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3. Analysis

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Involuntary confessions in state criminal cases are inadmissible under the Fourteenth

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Amendment. Blackburn v. Alabama, 361 U.S. 199, 207 (1960). A court on direct review is

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required to determine, in light of the totality of the circumstances, “whether a confession [was]

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made freely, voluntarily and without compulsion or inducement of any sort.” Withrow v.

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Williams, 507 U.S. 680, 689 (1993) (internal quotation marks and citation omitted). In light of

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the totality of the circumstances, “we ask: Is the confession the product of an essentially free and
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unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against

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him. If it is not, if his will has been overborne and his capacity for self-determination critically

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impaired, the use of his confession offends due process.” Doody v. Ryan, 649 F.3d 986, 1008

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(9th Cir. 2011) (internal quotation marks and citation omitted).

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“[C]oercive police activity is a necessary predicate to the finding that a confession is not

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‘voluntary’ within the meaning of the Due Process Clause.” Colorado v. Connelly, 479 U.S. 157,

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167 (1986). Police deception alone “does not render [a] confession involuntary,” United States v.

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Miller, 984 F.2d 1028, 1031 (9th Cir. 1993), nor is it coercive to recite potential penalties or

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sentences, including the potential penalties for lying to the interviewer, United States v. Haswood,

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350 F.3d 1024, 1029 (9th Cir. 2003).

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“The question of the voluntariness of a confession is a legal issue that requires an

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independent federal determination.” Rupe v. Wood, 93 F.3d 1434, 1444 (9th Cir. 1996). A state

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court’s ultimate conclusion that a confession was voluntary is reviewed under Section 2254(d)(1)

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of the AEDPA. Lambert v. Blodgett, 393 F.3d 943, 976-978 (9th Cir. 2004). However, a state

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court’s subsidiary factual conclusions are entitled to the presumption of correctness pursuant to

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Section 2254(e)(1). Rupe, 93 F.3d at 1444.

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Here, having reviewed the video recording of petitioner’s interview with police, the

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undersigned finds that the state court’s determination that, under the totality of the circumstances,

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petitioner’s confession was voluntary, was an objectively reasonable application of clearly

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established federal law. Thus this claim should be denied.

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B. Exculpatory Evidence

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1. Facts

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Petitioner claims that he was denied his right to present a full defense in violation of the

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Sixth and Fourteenth Amendments when the trial court excluded exculpatory evidence,

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specifically a videotaped conversation between petitioner and Murphy while both were in police

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custody. Petitioner contends that the tape was “reliable evidence of Murphy’s dominant

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personality” and showed that, when the two of them interacted, she was “the dominant figure[.]”

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(ECF No. 49-1 at 27-28.) Petitioner asserts that, had the tape been admitted, it would have
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bolstered his argument that Murphy was the planner and instigator of Rogers’ murder, and

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petitioner was the “duped pawn.” (Id. at 28.)

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The state court of appeal set forth the relevant facts as follows:
The court denied Howard’s request to admit a videotape of a joint
conversation between him and Murphy he contends was the “best
evidence” supporting his defense he was “dominated” by her and
did not know she intended to kill and rob Rogers. He argues
exclusion of “this crucial video” denied him his constitutional right
to present a complete defense. There was no error.
The court excluded the tape (in Howard’s trial only) under
Evidence Code section 352. It reasoned the tape was “not
particularly probative because Mr. Howard never accedes to any of
the requests, demands, or begging from Miss Murphy.” Howard
had already “presented other evidence from [his] mother, sister, and
acquaintances going to his gullibility and potential for being
influenced by others.” FN3. The limited probative value was
“outweighed by the potential for misleading and confusing the jury”
because it was “unrealistic” the jury was going to “disregard the
substance of what the two defendants say to each other about who
was the shooter and rely only on the demeanor and nonhearsay
purpose for which the evidence [wa]s offered.”
FN3. Because of this fact, the court earlier had found no denial of
Howard's due process rights.

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Howard, 2010 WL 54290 at *7.

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2. State Court Opinion

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Reviewing the merits of petitioner’s claim, the state court of appeal reasoned as follows:
The court’s ruling was not an abuse of discretion. The court
reasonably concluded the probative value of the tape was minimal
and was substantially outweighed by the probability it would
confuse the jury. As the court stated, the tape showed Murphy
repeatedly questioning Howard as to whether he told detectives she
pulled the trigger and asking Howard to confess to the killing.
Howard, in response, stated he did not pull the trigger and
explained he would get “life” if he said he “did it.” As such, the
tape was of limited probative value in establishing Howard was
dominated by Murphy. On the other hand, the court reasonably
found it unrealistic the jury could focus simply on the nonhearsay
reason for its admission, i.e., Murphy’s purported domination of
Howard, and ignore the truth of the statements that went to the
identity of the shooter.
Finally, the court’s ruling did not deprive Howard of his right to
present a defense because he was allowed to put on other evidence
supporting his theory he was dominated by Murphy. According to
Woodruff, Howard was “weak-minded,” unintelligent, and did
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things he did not want to do. According to Knight, Howard was
slow to understand things and gullible. This evidence, if accepted,
would have tended to support Howard's theory he was dominated
by Murphy.

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Howard, nevertheless, contends exclusion of the tape denied him
the opportunity to present a “‘complete defense’ “because neither of
these witnesses was “closely acquainted with [Murphy] or knew the
dynamics of the relationship....” He analogizes his situation to the
defendants in Chambers v. Mississippi (1973) 410 U.S. 284, Green
v. Georgia (1979) 442 U.S. 95, and Holmes v. South Carolina
(2006) 547 U.S. 319. These cases are not similar to Howard’s.

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Chambers involved a situation where state court rules
unconstitutionally prevented the defendant from either crossexamining his own witness (McDonald) who had repudiated a
written confession and asserted an alibi or calling his own witnesses
who would have discredited McDonald. [Citation.] Green
involved a situation where state court rules unconstitutionally
prevented the defendant from introducing evidence at the penalty
phase of his trial that codefendant Moore had confided to a witness
that Moore had killed the victim after ordering the defendant to run
an errand. [Citation.] And Holmes involved a situation where a
state court evidentiary rule barred the defendant from introducing
proof of third-party guilt when the prosecution introduced forensic
evidence that strongly supported a guilty verdict. [Citation.]

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Unlike in these three cases, here the evidentiary rules were used
simply to exclude minimally relevant evidence that marginally
related to Howard’s guilt. On this record, Howard's argument fails.

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Howard, 2010 WL 54290 at **7-8. The above summary of the tape’s contents is consistent with

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this court’s review of the record. (CT 478-500.)

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3. Analysis
The Sixth Amendment to the Constitution guarantees the right of a criminal defendant to

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have a public trial, to confront the witnesses against him and to obtain witnesses in his favor.

22

These guarantees are incorporated by the due process clause of the Fourteenth Amendment,

23

binding the states. Due process includes a right to “‘a meaningful opportunity to present a

24

complete defense.’” Crane v. Kentucky, 476 U.S. 683, 690 (1986).4

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/////

26
27
28

4

The undersigned does not review the propriety of the state court’s application of its own
evidentiary rules. “[F]ederal habeas corpus relief does not lie for errors of state law.” Estelle v.
McGuire, 502 U.S. 62, 67 (1991).
12

1

The United States Supreme Court has not “squarely addressed” whether a state court’s

2

exercise of discretion to exclude testimony violates a criminal defendant’s right to present

3

relevant evidence. Moses v. Payne, 555 F.3d 742, 758–59 (9th Cir. 2009). Nor has it clearly

4

established a “controlling legal standard” for evaluating discretionary decisions to exclude such

5

evidence. Id. at 758; see also Brown v. Horell, 644 F.3d 969, 983 (9th Cir. 2011) (“Between the

6

issuance of Moses and the present, the Supreme Court has not decided any case either ‘squarely

7

address[ing]’ the discretionary exclusion of evidence and the right to present a complete defense

8

or ‘establish[ing] a controlling legal standard’ for evaluating such exclusions.”), cert. denied, –––

9

U.S. ––––, 132 S. Ct. 593 (Nov. 14, 2011).

10

Petitioner contends that the trial court’s exclusion of the videotape is analogous to events

11

in Chambers v. Mississippi, 410 U.S. 284 (1973), in which state evidence rules prevented a

12

defendant in a murder trial from either cross-examining, or admitting the written confessions of, a

13

person who had been present at the crime scene and had admitted to shooting the victim. The

14

Ninth Circuit has interpreted Chambers to “clearly establish[] that the exclusion of trustworthy

15

and necessary exculpatory testimony at trial violates a defendant’s due process right to present a

16

defense.” Cudjo v. Ayers, 698 F.3d 752, 754-55 (9th Cir. 2012). As set forth above, the state

17

court in this case determined that Chambers was inapplicable, as the videotape of petitioner’s

18

interaction with Murphy at the police station was “minimally relevant evidence.”

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20
21
22
23
24
25
26
27
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In Nevada v. Jackson, 133 S.Ct. 1990(2013), the Supreme Court restated the broad rule
governing claims that evidence was unconstitutionally excluded:
“[T]he Constitution guarantees criminal defendants ‘a meaningful
opportunity to present a complete defense,’” Crane v. Kentucky,
476 U.S. 683, 690 (1986) . . . , but we have also recognized that
“‘state and federal rulemakers have broad latitude under the
Constitution to establish rules excluding evidence from criminal
trials,’” Holmes v. South Carolina, 547 U.S. 319, 324 (2006) [.]
Only rarely have we held that the right to present a complete
defense was violated by the exclusion of defense evidence under a
state rule of evidence. See Rock v. Arkansas, 483 U.S. 44, 61
(1987) (rule arbitrary); Chambers v. Mississippi, 410 U.S. 284,
302–303 (1973) (State did not even attempt to explain the reason
for its rule); Washington v. Texas, 388 U.S. 14, 22 (1967) (rule
could not be rationally defended).
Id. at 1992 (some citations omitted).
13

1

Here, the videotape was excluded under Section 352 of the California Evidence Code,

2

which like Federal Rule of Evidence 403, requires a balancing test between the probative value of

3

the evidence and the probability that its admission will consume undue time or “create substantial

4

danger of undue prejudice, or confusing the issues or of misleading the jury.” Cal. Evid. C. §

5

352. The conversation between petitioner and Murphy was confusing as to who actually “pulled

6

the trigger” and to what extent both participants were lying, or planning to lie, to the police. (See

7

CT 480 (both parties deny “pulling the trigger”).) While it showed Murphy doing most of the

8

talking and attempting to manipulate petitioner by crying, accusing, and invoking her infant son,

9

it is not clearly exculpatory, as it does not show that petitioner was willing to “take the fall” for a

10

crime he did not commit. (See CT 495 (petitioner asks Murphy if she really cares about him or is

11

just saying that, as “I’m getting ready to do life if I take this shit, if I say I did it.”).)
As the state courts’ conclusion that the trial court permissibly excluded this evidence was

12
13

not objectively unreasonable under § 2254(d), this claim should be denied.

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C. Diminished Capacity Defense

15

1. Facts

16

Petitioner claims that his trial counsel was ineffective in failing to investigate and present

17

a defense based on diminished actuality.5 (ECF No. 49-1 at 32.) He asserts that his defense

18

theory – that he was coerced and manipulated by Murphy – required further investigation into his

19

mental illness than defense counsel undertook, and that he was prejudiced by a lack of

20

“competent medical evidence” in support of this defense.

21
22

The background facts are as follows:
a. Dr. Edwards’ Report

23
24

When petitioner was appointed counsel in the instant federal action, his attorney found a
neuropsychologist, Dr. Daniel Edwards, to evaluate him. (ECF No. 49-2 at 3-4.) Dr. Edwards

25
5

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27
28

“To support a defense of ‘diminished actuality,’ a defendant presents evidence of voluntary
intoxication or mental condition to show he ‘actually’ lacked the mental states required for the
crime.” People v. Clark, 52 Cal. 4th 856, 880 n.3 (2011); see, e.g., People v. Hajek, 58 Cal. 4th
1144, 1166 (2014) (in “diminished actuality” defense, attorney argued that defendant’s mental
illness prevented him from forming the mental states required for murder and attempted murder).
14

1

reviewed approximately 1,000 pages of petitioner’s school and psychological records and, in

2

April 2012, evaluated him in person. (Id. at 4.) He prepared his final report on June 4, 2012.

3

(Id.) It is attached to the amended petition as Exhibit B. (ECF No. 49-3.)
Based on petitioner’s records, Dr. Edwards noted a childhood history of neglect, sexual

4
5

abuse, depression, and ADHD. At age 21, petitioner was diagnosed with Major Depressive

6

Disorder. Shortly after his February 2005 arrest for the murder of Donte Rogers, petitioner was

7

diagnosed with Bipolar Disorder, complained of auditory hallucinations, had a psychotic

8

breakdown, and was prescribed an antipsychotic and second antidepressant. (ECF No. 49-3 at 3.)

9

Tested in August 2005 by a Dr. McDermott, petitioner scored “in the definite malingering

10

range.” (Id.) In sum, he “presents [as] that most difficult to diagnose and understand patient who

11

has psychotic symptoms and in addition malingers or makes up symptoms. This makes it very

12

difficult to know what is real and what is made up.” (Id.)

13

As to petitioner’s April 2012 evaluation, Dr. Edwards notes that he was reality-oriented,

14

“a little depressed,” and not sleeping well. He continued to hear voices telling him “he is stupid

15

and to kill himself or other people.” He also reported past visual hallucinations. Two childhood

16

head injuries left petitioner unconscious and “could have resulted in brain damage[.]” From the

17

time of the first injury until 2011, petitioner experienced seizures. (Id. at 4.)

18
19

Tests of neurological deficits indicated brain dysfunction, leading Dr. Edwards to
conclude that petitioner “does not have a normal brain.” (Id. at 5.)

20

He is affected in a number of areas such as Executive Functions,
Attention and Concentration, Speed of Information Processing,
Spatial Skills, Verbal/Academic Skills, Verbal Learning, Memory,
Motor Control, and Fine Motor Skills.

21
22

These data should have been available as factors of mitigation
during Mr. Howard’s trial.
The defense did have a
neuropsychologist but she concluded that Mr. Howard was
malingering and untestable. I think that more effort should have
been spent on working with Mr. Howard to get him to the point
where he was [cooperative] with Neuropsychological testing so that
these results could have been considered by his Judge and Jury.

23
24
25
26
27

(Id.)

28

/////
15

1
2

The report went on to detail the results of petitioner’s tests, diagnosing him, in part, as
follows:
DSM IV

Axis I

Cognitive Disorder, NOS
Major Depressive Disorder with psychotic features
Schizophrenia, paranoid type

Axis II

3

Borderline and Antisocial Personality features

4
5
6
7

(Id. at 5-7.)
In conclusion, Dr. Edwards wrote that petitioner “is a psychiatrically very sick man[.] . . .

8

His relationship with reality is changeable and colored by depression and paranoid ideation. He

9

clearly has impaired brain function . . . . It is my opinion that these data should have been

10

collected and presented by his defense attorneys at trial to be considered as factors in mitigation.”

11

(Id. at 7.)

12

b. State Supreme Court Review

13

Based on Dr. Edwards’ evaluation, petitioner argued to the California Supreme Court that

14

petitioner’s trial attorney’s failure to investigate and present a mental health defense was

15

objectively unreasonable and undermined confidence in the trial’s outcome. (ECF No. 58 at 15-

16

19.) Specifically, petitioner asserted:

17

While trial counsel argued a diminished actuality defense, he
presented only two lay witnesses to support the defense, a friend
and a sister. An independent expert psychologist would have been
much stronger evidence and would have corroborated [these
witnesses]. An expert psychologist would have presented evidence
directly relevant to the defense of diminished actuality. This failure
to present expert psychological evidence undermined confidence in
the outcome and prejudiced Mr. Howard.

18
19
20
21
22

(Id. at 19.)

23

As requested by the state supreme court, both the state Attorney General’s office and the

24

Sacramento County Office of the Public Defender filed informal responses to the petition. (ECF

25

Nos. 58-1, 58-2; see ECF No. 58-4 at 2.) Petitioner filed a reply to the informal responses. (ECF

26

No. 58-3.)

27
28

In the Public Defender’s response, Supervising Public Defender Jeffrey Barbour – who
was petitioner’s trial attorney – asserted that the petition “fails to mention or discuss the
16

1

substantial mental health investigation actually done on this case.” (ECF No. 58-2 at 2.) Mr.

2

Barbour stated that, during the pendency of petitioner’s case, he had petitioner “evaluated by both

3

a psychiatrist and by a neuropsychologist. Neither could provide a favorable opinion for trial.”

4

(Id.)

5

Barbour recounted that, after reviewing “voluminous documents” concerning petitioner’s

6

childhood, juvenile records, and psychological problems, he retained a forensic psychiatrist, Dr.

7

Jeffrey Gould, to “generally assess [petitioner] and to direct me on any mental health issues.” (Id.

8

at 4-5.) Barbour provided Dr. Gould, whom he knew to be capable and experienced, with

9

petitioner’s background records and the videotape of petitioner’s statement to police. (Id. at 5.)

10

After reviewing these records and testing petitioner’s ability to understand Miranda warnings, Dr.

11

Gould concluded that he could not provide helpful information to Barbour about petitioner’s

12

cognitive functioning. He further concluded that petitioner did not appear to have Bipolar

13

Disorder, as he claimed. (Id.)

14

Barbour next retained a neuropsychologist, Dr. Nell Riley, to evaluate and test petitioner.

15

(Id.) Dr. Riley, who was employed by the Neurology Department at Stanford University

16

Hospital, reviewed petitioner’s background records and performed psychological testing. She

17

concluded that petitioner’s test behavior “was characterized by multiple indicators of insufficient

18

effort/malingering.” (Id.) “She noted that the severe impairment he displayed during testing was

19

inconsistent with his conversation with her where he was able to express his opinions and answers

20

in a clear and articulate manner.” (Id. at 6.) A test for malingering showed petitioner to be

21

“exaggerating impairment.” (Id.)

22

Barbour also reviewed petitioner’s jail psychiatric records. (Id.) These included a report

23

from Barbara McDermott, an associate professor of psychology at UC Davis, based on her 2005

24

evaluation of petitioner in jail. In a test designed to indicate whether the subject is malingering,

25

petitioner “scored in the definite malingering range on numerous scales, and in the probable

26

malingering range on numerous scales.” (Id.)

27

Finally, Barbour obtained a civil commitment (“5150”) report from the psychiatric

28

hospital where petitioner was evaluated in 2004, two months before Rogers’ killing, when
17

1

petitioner was reportedly suicidal. (Id.) During the evaluation, petitioner “denied auditory and

2

visual hallucinations” and was thought to be suffering from major depression. (Id.) In summary,

3

Barbour asserted that he “thoroughly investigated” petitioner’s mental health issues, contrary to

4

petitioner’s claim of ineffective assistance. (Id. at 7.)

5

In the Attorney General’s informal response, respondent’s attorney argued that

6

petitioner’s state habeas claim should be denied, as petitioner failed to make a prima facie

7

showing of ineffective assistance. (ECF No. 58-1.)

8

c. Trial Defense

9

In the absence of expert testimony about petitioner’s mental state, Barbour questioned lay

10

witnesses on this subject. Tawon Woodruff, a friend of Rogers, encountered petitioner several

11

times in the weeks before Rogers’ death. (RT 1226.) Rogers was a pimp, and petitioner acted as

12

his “muscle man” and sometimes drove “the girls and Mr. Rogers from place to place[.]” (RT

13

1227-1228.) Woodruff testified that petitioner was “weak-minded” and sometimes “did things

14

that he didn’t want to do.” (RT 1233.) When Rogers became angry at petitioner a few weeks

15

before his death over a money issue, petitioner cried. (RT 1234-1236.)

16

Leslie Knight, petitioner’s older sister, testified that he was slow to understand things and

17

gullible. (RT 1287-1288.) She testified that he “adored” Rogers and was his bodyguard (RT

18

1290), but had expressed “feelings of frustration” about Carmel Murphy. (RT 1292.)

19

Petitioner’s stepmother, Diana Howard, testified that Rogers was petitioner’s “really good

20

friend,” whom he loved. (RT 1318.) Rogers’ girlfriend, Tiana Smith, also testified that they were

21

friends, that petitioner sometimes stayed with them, and that whenever Rogers got money, he

22

would share it with petitioner. (RT 1326-1327.)

23

In his closing argument, Barbour argued that petitioner loved Rogers and had no reason to

24

seek revenge on him. “Mr. Rogers was the source of Mr. Howard’s income and his feeling of

25

self-importance.” (RT 1584.) While petitioner was gullible and “lacking in perception,” Murphy

26

was “the one running the show.” (RT 1585-1586.)

27
28

Caught in the middle of a dispute between Rogers and Murphy over a Jeep, petitioner
went to the park on the night of the shooting expecting to “sort this thing out.” (RT 1604.)
18

1

After Murphy deceived petitioner “in convincing him to bring Donte Rogers to the park,” she

2

shot Rogers, leaving petitioner “stuck, frozen, stunned by what happened.” (RT 1584-1585.)

3

Barbour argued that, once Rogers was dead, petitioner “gravitated toward his old friend

4

Carmel Murphy, the only one he had left around.” (RT 1586.) After talking to Murphy at the

5

police station, petitioner made a statement falsely incriminating himself. (Id.) He tried to “cast

6

the blame on himself . . . to mitigate what Carmel had done.” (Id. at 1593.) But petitioner “did

7

not plan [the shooting],” nor did he know of Murphy’s plan before it happened. (RT 1615-1616.)

8
9
10
11

Rejecting this theory, the jury convicted petitioner of first degree murder by means of
lying in wait. (RT 1644.)
2. Analysis
The California Supreme Court denied this claim without citations or comment. Where, as

12

here, the state court reaches a decision on the merits but provides no reasoning to support its

13

conclusion, a federal habeas court independently reviews the record to determine whether habeas

14

corpus relief is available under section 2254(d). Himes v. Thompson, 336 F.3d 848, 853 (9th Cir.

15

2003). “Independent review of the record is not de novo review of the constitutional issue, but

16

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

17

objectively unreasonable.” Id. Where a state court’s decision is unaccompanied by an

18

explanation, the habeas petitioner still has the burden of “showing there was no reasonable basis

19

for the state court to deny relief.” Harrington v. Richter, 562 U.S. 86, 98 2011).

20

The Supreme Court has enunciated the standards for judging ineffective assistance of

21

counsel claims. See Strickland v. Washington, 466 U.S. 668 (1984). First, a defendant must

22

show that, considering all the circumstances, counsel’s performance fell below an objective

23

standard of reasonableness. Strickland, 466 U.S. at 688. To this end, the defendant must identify

24

the acts or omissions that are alleged not to have been the result of reasonable professional

25

judgment. Id. at 690. The court must then determine, whether in light of all the circumstances,

26

the identified acts or omissions were outside the wide range of professional competent assistance.

27

Id. Second, a defendant must affirmatively prove prejudice. Id. at 693. Prejudice is found where

28

“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
19

1

proceeding would have been different.” Id. at 694. A reasonable probability is “a probability

2

sufficient to undermine confidence in the outcome.” Id. See also United States v. Murray, 751

3

F.2d 1528, 1535 (9th Cir. 1985); United States v. Schaflander, 743 F.2d 714, 717-718 (9th Cir.

4

1984) (per curiam).

5

As to ineffective assistance claims in the federal habeas context, the Supreme

6

Court has instructed: “The standards created by Strickland and § 2254(d) are both ‘highly

7

deferential,’ . . . and when the two apply in tandem, review is ‘doubly’ so[.] . . . . When §

8

2254(d) applies, the question is not whether counsel’s actions were reasonable. The question is

9

whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard.”

10
11

Richter, 562 U.S. at 105 (internal citations omitted).
Based on the foregoing record, petitioner has shown neither ineffective assistance nor

12

prejudice under the Strickland/AEDPA standard. See Stokeley v. Ryan, 659 F.3d 802, 814 (9th

13

Cir. 2011) (“In sum, ‘[t]his is not a case in which the defendant’s attorneys failed to act while

14

potentially powerful mitigating evidence stared them in the face. It is instead a case, like

15

Strickland itself, in which defense counsel’s decision not to seek more mitigating evidence from

16

the defendant's background than was already in hand fell well within the range of professionally

17

reasonable judgments.”) (internal citations and quotation marks omitted).

18

In his traverse, petitioner argues that Mr. Barbour’s informal response, while considered

19

by the state supreme court, should not be relied on by this court because it is unsworn and

20

untested by cross-examination. (ECF No. 60-1 at 26-27.) While petitioner’s point is well-taken,

21

he cites no case, and the court is not aware of one, holding that a party’s informal response in the

22

California Supreme Court should not be considered on federal habeas review. See Nguyen v.

23

Dickinson, 2013 WL 3389075, *4 (N.D. Cal. July 8, 2013) (“Even assuming that petitioner is

24

correct that under Section 2254 a federal court reviewing a state court’s denial of habeas relief

25

must consider the position taken by the state in informal responses filed with the state court,

26

petitioner’s argument fails.”).

27

Here, even assuming petitioner is correct that a federal habeas court may not consider

28

unsworn statements in an informal response to the state supreme court, petitioner has failed to
20

1
2
3

carry his burden to show ineffectiveness and prejudice. Thus this claim should be denied.
Accordingly, IT IS HEREBY RECOMMENDED that the petition for writ of habeas
corpus (ECF No. 49-1) be denied.

4

These findings and recommendations are submitted to the United States District Judge

5

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

6

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

7

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

8

“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

9

shall be served and filed within fourteen days after service of the objections. The parties are

10

advised that failure to file objections within the specified time may waive the right to appeal the

11

District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

12

Dated: April 10, 2015

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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