Marsala v. Lackner

Filing 63

ORDER signed by Magistrate Judge Carolyn K. Delaney on 09/07/16 ordering petitioner's petition for writ of habeas corpus is denied. This case is closed. The court declines to issue a certificate of appealability. CASE CLOSED. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSEPH AUGUST MARSALA,

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No. 2:13-cv-1614 CKD P

Petitioner,
v.

ORDER

HEIDI LACKNER,
Respondent.

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Petitioner is a California prisoner proceeding pro se with a petition for writ of habeas

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corpus under 28 U.S.C. § 2254. On May 17, 2010, petitioner was convicted by a jury in Siskiyou

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County of false imprisonment, battery, torture, assault by means of force likely to produce great

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bodily injury and dissuading a witness. He is serving consecutive sentences of 10 years and 8

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months imprisonment and 7 years-to-life imprisonment. Respondent filed an answer to the

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petition, and petitioner filed a traverse. ECF Nos. 23, 46. The parties have consented to

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magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c). ECF Nos 6 and 16. Upon careful

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consideration of the record and the applicable law, the petition is denied.

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I. Factual Background

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In its affirmation of the judgment on direct appeal, the California Court of Appeal, Third
Appellate District summarized the facts presented at trial as follows:
Defendant’s convictions stem from his physical abuse of the victim
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in late May 2009 during an overnight stay at a transient campsite in
the woods south of Little Castle Creek and west of Interstate 5 near
the Crag View Drive exit.
This is in Siskiyou County’s
southernmost reaches (with Dunsmuir just to the north). On the
east side of the interstate (through a culvert for the creek) is a
popular local swimming hole.

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The victim, in her mid-thirties, had known defendant since her
childhood in the Weed region of the county. They began “seeing
each other off and on” in summer 2008. She had been addicted to
methamphetamine and alcohol since her teens. At the time of the
trial, she was experiencing the after-effects of her injuries
(including chronic pain, seizures, and poor short-term memory),
which required her to take analgesics and psychiatric medications.
She also had a preexisting bipolar condition that required
medication as well.

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In February 2009, the victim and the defendant left town. They met
up with the victim’s teenage son, who had stolen a car from his
foster parents, and the three began a cross-country trip to Missouri
(where defendant’s father had lived). The victim testified she left
Siskiyou County to keep threats of violence away from her
grandmother (with whom she lived) and younger child. She told
her probation officer at the time that she was afraid the people with
whom she had drug dealings were going to kill her.1 Defendant left
to avoid charges for inflicting great bodily harm on Cliff Taylor.2
On the way, they stopped in Las Vegas for a couple of days, where
the family of defendant’s stepfather lived. They stayed in Missouri
for a few weeks, after which the victim and her son returned to
California by bus.

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When defendant returned to California, the victim joined him
reluctantly in Sacramento. She wanted to keep him away from her
grandmother, because his behavior had become volatile while they
were in Missouri. They camped for a while in the foothills while
defendant panned for gold. The victim testified that defendant was
being verbally and physically abusive.

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Defendant had not been using drugs up to this point. After they had
been in the foothills for a couple of months, defendant’s brother and
his girlfriend met up with them.3 The quartet stayed a night at a

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At trial, the victim asserted defendant had kidnapped her at gunpoint from her home. Although
encountering numerous individuals in her travels with defendant and her son, there is an absence
of any evidence that she mentioned this to any of them, as defendant points out (without
contradiction from the People).

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Taylor testified that defendant had hit him in the face with a baseball bat. Apparently, this took
place in March 2008, and was the subject of a separate case that was consolidated into the present
one. The record is unclear about its disposition and the parties do not refer to it.
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Neither testified at trial.

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“pink motel,” where defendant inflicted physical abuse on the
victim.4 At some point the following day, the victim asked the
girlfriend to get them back to Siskiyou County because defendant
would kill her if they left them behind. Defendant started hitting
her in the car in front of the others. The victim said she was getting
badly bruised, and the quartet spent the following night at a
different motel; the victim testified the brother was concerned that
defendant’s behavior “was going to get them pulled over, and
[defendant’s] brother told him, ‘You can’t do this in public. You
have to do this in private.’” Again, defendant subjected the victim
to physical abuse throughout the night. Although she was
screaming to draw attention, no one responded.

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The following day, defendant was smoking drugs as they drove in
the brother’s girlfriend’s car. Defendant began hitting the victim in
front of the others, and continued his verbal abuse. At one point,
the girlfriend stopped the car because she could not tolerate
defendant’s behavior any longer. Although the victim pleaded with
the other two to put a stop to the abuse, neither said anything to
defendant. They drove north on Interstate 5, stopping only once in
Williams at a gas station (where defendant threatened to break the
victim’s jaw if she sought help) before they reached the exit for the
Little Castle Creek encampment in the late afternoon. The victim
again pleaded with the others not to leave her there with defendant.
When a truck—parked nearby—departed, defendant punched her in
the jaw.

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Defendant forced the victim toward the encampment, striking her in
the head and back as they walked through the culvert. However,
defendant calmed down for a few hours. After it grew dark,
someone parked a car at the swimming hole and honked. The
victim assumed it was defendant’s brother, because defendant
returned with drugs. After taking them, defendant became “mean
and explosive.” He beat her continuously during the night and
following day of their stay. She began to have seizures.5

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On the following afternoon, defendant encountered a group of
teenagers near the culvert, and asked them to call the police to
summon medical assistance for his companion. When they
followed him to the campsite, he claimed Taylor (his great bodily
injury victim) had beaten her. He has also told the victim to give
the same explanation to the paramedics when they arrived (the
victim knew Taylor from past drug purchases).6 She accordingly
told this to a paramedic and a detective, alluding to being a casualty
of a “drug war.”

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A motel employee came to defendant’s and the victim’s room that night to reprimand them for
smoking. The employee did not see any signs of bruising or other indications of violence.
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The victim testified that defendant had also set her belongings on fire and raped her, though the
jury did not convict defendant of either crime.
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Taylor denied knowing the victim or selling drugs to her, and claimed he had not been in the
vicinity of the swimming hold and encampment for six years.
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Defendant had left before assistance arrived, telling a witness that
he needed to pursue the attacker. He later told a detective that an
unknown assailant had attacked the victim in his absence, and the
impetus for his flight was his outstanding warrant for inflicting
great bodily injury.

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When examined at the hospital, the victim had bruising over her
entire body, a fractured nose, and a subdural hematoma. The victim
also tested positive for methamphetamine. While the victim told a
detective that defendant had rubbed her face with creosote, the
examination did not find any signs of this. The victim also testified
defendant had cut her genitalia with a sharp object, but an exam a
week after her rescue did not show any signs of this.

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Lodged Document (“Lod. Doc.”) 5 at 2-7;7 see also People v. Marsala, No. C 065614, 2012 WL

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592920 at *1-3 (Cal. App. 3d Dist. Feb. 23, 2012).

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II.

Procedural Background
Following a jury trial in the Siskiyou County Superior Court, petitioner was convicted of

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false imprisonment (as a lesser included offense of kidnapping for purposes of rape),

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misdemeanor battery (as a lesser included offense of rape), torture, assault by means of force

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likely to produce great bodily injury, and dissuading a witness. Lod. Doc. 5 at 1. The jury found

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the charged enhancements for inflicting great bodily injury and for having served two prior prison

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terms to be true. Id. The jury also returned a verdict of not guilty on charges of attempted

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murder, the making of criminal threats, and arson. Id.

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The trial court sentenced petitioner to state prison with indeterminate term of life

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imprisonment with the possibility of parole after seven years, and a consecutive determinate term

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of ten years and eight months.
Petitioner appealed the judgment to the California Court of Appeal, Third Appellate

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District. Lod. Doc. 1. With the exception of making a modification to pretrial custody credits,

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the appellate court denied petitioner’s claims on the merits and affirmed his sentence. Lod. Doc.

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5.

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Lodged documents refer to documents lodged by respondent on March 11, 2015. ECF No. 24.
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Petitioner filed a petition for review in the California Supreme Court. Lod. Doc. 6.
On May 16, 2012, the California Supreme Court denied review. Lod. Doc. 7.

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Petitioner filed a state habeas petition in the Siskiyou County Superior Court on August 2,

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2013, which was denied in a written decision on September 6, 2013. Lod. Docs. 8, 9. Petitioner

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filed a second state habeas petition in the California Court of Appeal, Third Appellate District on

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November 1, 2013, which was summarily denied on November 7, 2013. Lod. Docs. 9, 10.

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Petitioner filed a third state habeas petition in the California Supreme Court on February 18,

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2014, which was summarily denied on May 14, 2014. Lod. Doc. 10.

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Petitioner filed the instant federal habeas petition on August 5, 2013. ECF No. 1. He

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subsequently filed the operative first amended petition on April 7, 2014. ECF No. 12.

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Respondent filed an answer on March 11, 2015. ECF No. 23. Petitioner filed a traverse on July

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2, 2015. ECF No. 46.

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III.

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Standard For Habeas Corpus Relief
An application for a writ of habeas corpus by a person in custody under a judgment of a

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state court can be granted only for violations of the Constitution or laws of the United States. 28

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U.S.C. § 2254(a). Also, federal habeas corpus relief is not available for any claim decided on the

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merits in state court proceedings unless the state court’s 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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28 U.S.C. § 2254(d) (referenced herein in as “§ 2254(d)”). It is the habeas petitioner’s burden to

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show he is not precluded from obtaining relief by § 2254(d). See Woodford v. Visciotti, 537 U.S.

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19, 25 (2002).

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The “contrary to” and “unreasonable application” clauses of § 2254(d)(1) are different.
As the Supreme Court has explained:
A federal habeas court may issue the writ under the “contrary to”
clause if the state court applies a rule different from the governing
law set forth in our cases, or if it decides a case differently than we
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have done on a set of materially indistinguishable facts. The court
may grant relief under the “unreasonable application” clause if the
state court correctly identifies the governing legal principle from
our decisions but unreasonably applies it to the facts of the
particular case. The focus of the latter inquiry is on whether the
state court’s application of clearly established federal law is
objectively unreasonable, and we stressed in Williams [v. Taylor,
529 U.S. 362 (2000)] that an unreasonable application is different
from an incorrect one.

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Bell v. Cone, 535 U.S. 685, 694 (2002). A state court does not apply a rule different from the law

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set forth in Supreme Court cases, or unreasonably apply such law, if the state court simply fails to

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cite or fails to indicate an awareness of federal law. Early v. Packer, 537 U.S. 3, 8 (2002).

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The court will look to the last reasoned state court decision in determining whether the

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law applied to a particular claim by the state courts was contrary to the law set forth in the cases

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of the United States Supreme Court or whether an unreasonable application of such law has

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occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002).
When a state court rejects a federal claim without addressing the claim, a federal court

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presumes the claim was adjudicated on the merits, in which case § 2254(d) deference is

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applicable. Johnson v. Williams, 133 S. Ct. 1088, 1096 (2013). This presumption can be

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rebutted. Id.

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It is appropriate to look to lower federal court decisions to determine what law has been

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“clearly established” by the Supreme Court and the reasonableness of a particular application of

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that law. “Clearly established” federal law is that determined by the Supreme Court. Arredondo

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v. Ortiz, 365 F.3d 778, 782-83 (9th Cir. 2004). At the same time, it is appropriate to look to

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lower federal court decisions as persuasive authority in determining what law has been “clearly

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established” and the reasonableness of a particular application of that law. Duhaime v.

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Ducharme, 200 F.3d 597, 598 (9th Cir. 1999); Clark v. Murphy, 331 F.3d 1062 (9th Cir. 2003),

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overruled on other grounds, Lockyer v. Andrade, 538 U.S. 63 (2003); cf. Arredondo, 365 F.3d at

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782-83 (noting that reliance on Ninth Circuit or other authority outside bounds of Supreme Court

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precedent is misplaced).

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III. Arguments and Analysis

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A. Prosecutorial Misconduct

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First, petitioner argues that his due process rights were violated as a result of a number of

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instances of misconduct by the prosecution during petitioner’ state court trial. Specifically,

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petitioner argues that the prosecution engaged in the following instances of misconduct: (1) made

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an inaccurate comment that petitioner’s case was a “Three Strikes” case in a newspaper article

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published while jury selection was ongoing; (2) delayed discovery of the victim’s supplemental

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statement made to the prosecution’s investigator; (3) withheld witness Ruth Kellner’s address

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from petitioner; (4) intercepted confidential defense communications; (5) engaged in witness

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tampering; (6) knowingly elicited perjured testimony from the victim and witness Mellissa

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Skallerud; (7) made impermissible inferences in her closing argument; (8) failed to disclose or

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preserve exculpatory evidence; (9) attempted to use petitioner’s post-arrest silence against him;

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(10) failed to provide victim’s medical history; (11) improperly attempted to elicit prior bad acts

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testimony; and (12) engaged in pervasive misconduct (collectively “prosecutorial misconduct

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claims”).

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1. Procedural Default
As an initial matter, respondent argues that all of petitioner’s prosecutorial misconduct

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claims are procedurally defaulted because the state habeas court denied these claims when

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petitioner raised them for the first time based on an independent and adequate state procedural

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rule.

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The procedural default doctrine forecloses federal review of a state prisoner’s federal

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habeas claims if those claims were defaulted in state court pursuant to an independent and

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adequate state procedural rule. See Coleman v. Thompson, 501 U.S. 722, 729-30 (1991).

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Generally, “federal habeas relief will be unavailable when (1) ‘a state court [has] declined to

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address a prisoner’s federal claims because the prisoner had failed to meet a state procedural

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requirement,’ and (2) ‘the state judgment rests on independent and adequate state procedural

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grounds,’” Walker v. Martin, 562 U.S. 307, 316 (2011) (quoting Coleman, 501 U.S. at 729-30).

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A state procedural rule is “adequate” only if it is clear, consistently applied, and well established
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at the time of petitioner’s default. Walker, 562 U.S. at 316; Calderon v. United States Dist.

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Court, 96 F.3d 1126, 1129 (1996). The respondent bears the burden of proof with respect to the

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“adequacy” of a state procedural bar. Bennett v. Mueller, 322 F.3d 573, 585-86 (9th Cir. 2003).

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“[A] procedural default does not bar consideration of a federal claim on either direct or habeas

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review unless the last state court rendering a judgment in the case ‘clearly and expressly’ states

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that its judgment rests on a state procedural bar.” Harris v. Reed, 489 U.S. 255, 263 (1989).

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Furthermore, a federal habeas court may still consider the merits of an otherwise procedurally

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defaulted claim if the petitioner successfully makes a showing of “cause” and “prejudice.”

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Martinez v. Ryan, 132 S. Ct. 1309, 1316 (2012) (“A prisoner may obtain federal review of a

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defaulted claim by showing cause for the default and prejudice from a violation of federal law.”).

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Here, respondent argues that petitioner’s prosecutorial misconduct claims are procedurally

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defaulted because the state habeas court denied them on the basis of the independent and adequate

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state procedural rule that plaintiff had failed to raise any of them on direct appeal. Respondent’s

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argument is well taken.

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The record shows that petitioner failed to raise any of his prosecutorial misconduct claims

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on direct appeal. See Lod. Docs. 1, 2, 3. Instead, petitioner first raised these claims in his state

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habeas petition filed in the Siskiyou County Superior Court. See Lod. Doc. 8. In denying his

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petition, the Siskiyou County Superior Court provided the following rationale:

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A petition for habeas corpus will be dismissed if it alleges an issue
that could have been, but was not, raised on direct appeal. Habeas
corpus is not available to review claims of insufficiency of evidence
or claims concerning trial court’s rulings or procedural errors,
which should be presented on direct appeal. In re Lindley (1947)
29 Cal.2d 709.

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Further any issue that was actually raised and rejected on appeal
cannot be renewed in a petition for a writ of habeas corpus. In re
Harris (1993) 5 Cal.4th 813.

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Lod. Doc. 9.

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Petitioner also asserted these claims in his subsequent habeas petitions before the

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California Court of Appeals, Third Appellate District and the California Supreme Court, but

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petitioner’s petitions were denied by both courts without comment. Lod. Docs. 9, 10.

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Accordingly, the Siskiyou County Superior Court’s was the last reasoned state court decision on

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petitioner’s prosecutorial misconduct claims. See Vansickel v. White, 166 F.3d 953, 957 (9th

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Cir. 1999) (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)) (to determine whether a claim

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is procedurally barred, the court looks to the last reasoned state court opinion addressing that

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claim).

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More importantly, the Siskiyou County Superior Court denied petitioner’s prosecutorial

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misconduct claims on the adequate and independent state law procedural ground that petitioner

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failed to assert those claims on direct appeal, and instead raised them for the first time in his state

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habeas petition. In Ex Parte Dixon, 41 Cal.2d 756 (1953), the California Supreme Court held that

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a criminal defendant cannot assert claims in a state habeas petition that “could have been, but

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were not, raised upon a timely appeal from a judgment of conviction.” Id. at 759. Recently, the

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U.S. Supreme Court held that this procedural rule the California Supreme Court announced in

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Dixon is an adequate and independent state procedural bar sufficient to bar a claim from federal

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habeas review under the procedural default doctrine. Johnson v. Lee, 136 S. Ct. 1802 (2016) (per

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curiam).

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While the state habeas court here did not cite directly to the procedural rule set forth in

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Dixon, it nevertheless provided a plain statement of the substance of the procedural rule set forth

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in that case as its rationale for denying petitioner’s claims that he had not previously raised on

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direct review, which included his prosecutorial misconduct claims. Lod. Doc. 9 (“A petition for

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habeas corpus will be dismissed if it alleges an issue that could have been, but was not, raised on

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direct appeal.”). Accordingly, the state habeas court’s decision adequately demonstrates that that

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court relied on the Dixon rule as a reason for dismissing any of petitioner’s claims that he had not

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previously raised, thus barring any of petitioner’s prosecutorial misconduct claims asserted in his

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present federal petition. See Harris, 489 U.S. at 263 (quoting Caldwell v. Mississippi, 472 U.S.

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320, 327 (1985)) (holding that procedural default bars a claim asserted in a federal habeas petition
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when “the last state court rendering a judgment in the case ‘clearly and expressly’ states that its

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judgment rests on a state procedural bar”).

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Petitioner argues that any procedural default on his prosecutorial misconduct claims

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should be excused because his appellate counsel acted deficiently by declining to raise the claims

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on direct appeal despite petitioner’s insistence that he do so. In support of this argument,

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petitioner attaches to his petition a copy of a letter his appellate counsel wrote to him stating that

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his counsel declined to include many of the prosecutorial misconduct claims petitioner raises in

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the present petition as claims in petitioner’s appellate brief on direct appeal in state court because

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his counsel believed those claims to lack merit. ECF No. 12 at 149-53.

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A demonstration of ineffective assistance of counsel is sufficient to establish cause to

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excuse a procedural default if the petitioner’s counsel was “so ineffective as to violate the Federal

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Constitution.” Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (citing Murray v. Carrier, 477

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U.S. 478, 488-89 (1986)). However, as discussed in more detail below with regard to the merits

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of petitioner’s separate ineffective assistance of appellate counsel claim, petitioner fails to show

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that his counsel acted in a manner that was constitutionally deficient such that petitioner’s

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procedural default is excused. Indeed, as discussed below, petitioner’s multitude of prosecutorial

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misconduct claims all are without merit. Therefore, petitioner’s appellate counsel did not act

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deficiently in deciding to not raise those claims on direct appeal. See Miller v. Keeney, 882 F.2d

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1428, 1434 (9th Cir. 1989) (“In many instances, appellate counsel will fail to raise an issue

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because she foresees little or no likelihood of success on that issue; indeed, the weeding out of

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weaker issues is widely recognized as one of the hallmarks of effective appellate advocacy.”).

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Because petitioner fails to demonstrate that his appellate counsel acted deficiently, petitioner’s

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procedural default with respect to his prosecutorial misconduct claims is not excused.

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2. Claims on the Merits
In addition to being procedurally defaulted, petitioner’s 12 prosecutorial misconduct
claims all lack merit for the reasons discussed below.

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a. Made an Inaccurate Comment that Petitioner’s Case was a “Three

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Strikes” Case in a Newspaper Article Published While Jury Selection was

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Ongoing

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Petitioner first argues that the prosecutor engaged in misconduct in violation of

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petitioner’s right to due process when she made an inaccurate remark to a reporter that

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petitioner’s case was a “Three Strikes” case due to the nature of the charged felonies that was

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published in a local newspaper while jury selection was still ongoing in petitioner’s criminal case.

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Petitioner asserts that the prosecutor’s erroneous comment effectively tainted the jury pool for his

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criminal trial because there was no way of definitively knowing whether the prospective jurors,

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and, ultimately, the members of the jury pool that were empaneled and rendered the verdict, had

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read the article.

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The Supreme Court has held that:
Due process requires that the accused receive a trial by an impartial
jury free from outside influences . . . . The courts must take such
steps by rule and regulation that will protect their processes from
prejudicial outside interferences . . . . Neither prosecutor, counsel
for defense, the accused, witnesses, court staff nor the enforcement
officers coming under the jurisdiction of the court, should be
permitted to frustrate its function.

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Sheppard v. Maxwell, 384 U.S. 333, 362-63 (1966). However, in order to rise to the level of a

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due process violation, the conduct must “render th[e] trial fundamentally unfair.” Darden v.

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Wainwright, 477 U.S. 168, 193 (1986); Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974).

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Furthermore, the jury’s exposure to news accounts of the charged crime, standing alone, will not

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presumptively deprive the defendant of due process. Skilling v. United States, 561 U.S. 358, 380

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(2010) (citing Murphy v. Florida, 421 U.S. 794, 798-99 (1975)). Instead, the defendant must

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show “that actual bias infected the jury that tried him.” Skilling, 561 U.S. at 398.

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Here, after the news article containing the prosecutor’s comment was brought to the trial

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judge’s attention during the voir dire process, he decided to question each prospective juror as to

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whether he or she had read the newspaper article containing the prosecutor’s “Three Strikes”

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comment. Lod. Doc. 12 at 872-73. If any prospective juror responded that he or she had

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reviewed or read the text of the article, then the trial court would dismiss that juror. Id. at 873.

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All 12 members of the jury and the 3 alternative jurors who were ultimately empaneled and

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rendered a verdict in petitioner’s case stated that they had not read the article when asked by the

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judge during voir dire. Id. at 874.

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Petitioner raised this claim in a motion to dismiss before the state trial court at the

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conclusion of jury selection, and the trial court rejected it as meritless. Lod. Doc. 11 at 325-30;

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Lod. Doc. 12 at 872-74. In short, the trial court found that the jury had not been tainted by the

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article because “no member of the jury and . . . none of the three alternate jurors in this case in

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any way read the article.” Lod. Doc. 12 at 874. Because the trial court took appropriate measures

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to reasonably ensure that none of the jurors who ultimately rendered a verdict in petitioner’s case

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read the article with the prosecutor’s erroneous “Three Strikes” comment, the prosecutor’s

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conduct in providing comments to the newspaper did not render petitioner’s trial fundamentally

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unfair. Nor was the jury tainted by the article such that it was unable to impartially render its

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verdict.

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Petitioner argues, however, that the measure the trial court took in questioning the jurors

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regarding the whether they had read the article was an inadequate remedy to address potential

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jury bias because the jurors could have simply lied that they had not read the article. However,

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the trial court found as a matter of fact that none of the jurors or alternative jurors ultimately

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empaneled in petitioner’s case had read the article at issue. Lod. Doc. 12 at 874. Federal courts

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sitting in habeas are required to presume that the determination of a factual issue by the state

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court is correct and the petitioner has “the burden of rebutting the presumption of correctness by

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clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Petitioner fails to provide any evidence

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to support his claim that the jurors lied other than his own conjecture based on the fact that

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community from which the jurors were selected was small and the article was published in the
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local paper, which was a means of spreading information quickly within that community. This is

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insufficient to meet the high “clear and convincing evidence” standard required to rebut the trial

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court’s factual finding. Therefore, petitioner’s argument is without merit.

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Finally, for the first time in his traverse, petitioner appears to make the additional

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argument that the jury was tainted further because the article noted that the Siskiyou County

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Superior Court’s website listed murder as a charge, which was incorrect since petitioner had only

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been charged with attempted murder. Petitioner contends that the trial court did not question any

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of the potential jurors on whether they had seen the article’s claim that petitioner was charged

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with murder, therefore there was no way of knowing whether the jurors had seen and been

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negatively influenced by it.

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As an initial matter, it is not appropriate to raise new arguments in a traverse. Cacoperdo

12

v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994). Therefore, petitioner’s newly-raised argument

13

is improperly presented. Moreover, none of the jurors who decided his case actually read the

14

article, therefore meaning that they did not read the article’s mention of the murder charge.

15

Furthermore, the copy of the article attached to the operative petition shows that while the article

16

noted that the trial court’s website listed the case as a murder case, it also noted that this statement

17

was contradicted by a police report that stated that petitioner was charged with attempted murder,

18

thus accurately indicating to the reader that petitioner was charged with attempted murder rather

19

than murder. ECF No. 12 at 106. Finally, even had the jurors read the article or the court

20

website’s listing, no actual prejudice could have arisen because the jury acquitted petitioner on

21

the attempted murder charge and all murder-related charges, and there is nothing in the record

22

indicating that any of the jurors were biased by a belief that petitioner was a murderer. Lod. Doc.

23

11 at 605-06.
In short, petitioner fails to show that the prosecutor’s comments in the published

24
25

newspaper article tainted the jury or otherwise rendered his trial fundamentally unfair. Therefore,

26

this claim is without merit.

27

/////

28

/////
13

1

b. Delayed Discovery of the Victim’s Supplemental Statement made to

2

Detective Blaney

3

Next, petitioner argues that the prosecution violated the rule announced by the Supreme

4

Court in Brady v. Maryland, 373 U.S. 83 (1963) when she belatedly produced a supplemental

5

report by the prosecutor’s investigator, Detective Rachel Blaney, that summarized statements

6

made by the victim about her travel to Missouri with petitioner.
In Brady, the Supreme Court held that “the suppression by the prosecution of evidence

7
8

favorable to an accused upon request violates due process where the evidence is material either to

9

guilt or punishment.” 373 U.S. at 87. Since Brady, the Supreme Court has clarified that the duty

10

to disclose is applicable even though there has been no request by the accused, United States v.

11

Agurs, 427 U.S. 97, 107 (1976), that the duty encompasses impeachment evidence as well as

12

exculpatory evidence, United States v. Bagley, 473 U.S. 667, 676 (1985), and that the rule covers

13

information “known only to the police investigators and not the prosecutor.” Kyles v. Whitley,

14

514 U.S. 419, 438 (1995). “There are three components of a true Brady violation: The evidence

15

at issue must be favorable to the accused, either because it is exculpatory, or because it is

16

impeaching; that evidence must have been suppressed by the State, either willfully or

17

inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82

18

(1999).

19

Here, during the trial, the victim testified that she had traveled with petitioner and her son

20

in a stolen car to Missouri, where they stayed for several months with petitioner’s father, who

21

warned her that she needed to get away from petitioner. Lod. Doc. 12 at 1786-87, 1928. The

22

victim also testified that she had told Detective Blaney about these events. Id. at 1790.

23

Petitioner’s trial counsel tried to impeach the victim by noting that Detective Blaney’s report of

24

her conversations with the victim, which had been provided to petitioner through pretrial

25

discovery, did not contain such information. Id. at 1927-30. However, when petitioner’s trial

26

counsel cross-examined Detective Blaney later on in the trial, Detective Blaney testified that the

27

victim had provided statements during a subsequent phone interview that she had traveled with

28

petitioner and her son to Missouri and that petitioner’s father had warned her about petitioner. Id.
14

1

at 2115-17. It was later revealed that Detective Blaney had prepared a supplemental report

2

regarding this additional conversation with the victim and had forwarded that report to the

3

prosecutor, but the prosecutor had not produced the report to petitioner prior to trial and had not

4

read the report herself until after Detective Blaney’s initial cross-examination. Id. at 2498-99.

5

The defense moved for a mistrial or, alternatively, to strike the testimony of both the

6

victim and Detective Blaney, because the prosecution failed to provide petitioner with Detective

7

Blaney’s supplemental report prior to trial. Id. at 2117-28. After additional briefing and

8

argument on the issue, the trial court ruled that while Detective Blaney’s supplemental report

9

should have been provided as part of pretrial discovery and its omission “to some extent

10

undermine[d]” the defense’s efforts to impeach the victim, petitioner’s only requested remedies,

11

that the trial court either declare a mistrial or strike the entirety of the testimonies provided by the

12

victim and Detective Blaney, were not warranted in light of the circumstances as the statements

13

contained in the supplemental report were “not facially exculpatory” and their delayed disclosure

14

did not “deprive [petitioner] of a fair trial.” Id. at 2498-2501, 2506. Both the victim and

15

Detective Blaney retook the witness stand after the trial court’s ruling on petitioner’s motion—

16

after Detective Blaney’s supplemental report had finally been disclosed to petitioner—and were

17

subject to further cross-examination regarding the subject of their phone conversation with the

18

benefit of Detective Blaney’s supplemental report. Id. 2615-19, 2665-2727.

19

In light of these facts in the record, petitioner fails to demonstrate a Brady violation.

20

“[T]here is no Brady violation so long as the exculpatory or impeaching evidence is disclosed at a

21

time when it still has value.” United States v. Houston, 648 F.3d 806, 813 (9th Cir. 2011). The

22

record shows that Detective Blaney’s supplemental report was ultimately produced to petitioner,

23

albeit in a delayed fashion, and that both the victim and Detective Blaney retook the stand and

24

were subject to cross-examination after petitioner obtained the report. Because the supplemental

25

report was disclosed at a time when it still had value, i.e., when petitioner could use it to cross-

26

examine the victim and Detective Blaney, no Brady violation occurred. See Houston, 648 F.3d at

27

813 (“The government also turned over AUSA Martin’s notes from his interview with

28

McConaghy during trial but while cross-examination was on-going. At this point, the notes still
15

1

had evidentiary value to the defense because they could be used—and were used—during cross

2

examination.”); United States v. Vgeri, 51 F.3d 876, 880 (9th Cir. 1995) (impeaching evidence

3

disclosed during trial was still valuable because the defense could use it on cross-examination);

4

United States v. Gordon, 844 F.2d 1397, 1403 (9th Cir.1988) (impeaching evidence disclosed

5

after a witness had finished testifying did not constitute a Brady violation because the court had

6

offered to recall the witness for further cross-examination in light of the new impeaching

7

evidence). Accordingly, petitioner’s claim is without merit.

8
9

c. Withheld Witness Kellner’s Address from Petitioner
Next, petitioner contends that the prosecution improperly withheld the address of

10

prosecution witness Ruth Kellner, petitioner’s ex-girlfriend, by falsely claiming on a pretrial

11

witness list that Kellner had requested her address be withheld from the defense and that all

12

contact with her go through her attorney John Lawrence. Petitioner argues that the prosecution’s

13

withholding of Kellner’s address under the claimed false pretenses constituted a Brady violation.

14

As an initial matter, petitioner fails to show how Kellner’s address was exculpatory in

15

nature such that its non-disclosure constituted a Brady violation. Moreover, to the extent

16

petitioner appears to argue that the lack of Kellner’s address unduly hindered his ability to present

17

a defense by depriving the defense team access to that witness, the record belies this claim. The

18

record shows that the defense was given an opportunity to interview Kellner prior to her

19

testimony for the prosecution, but the defense declined to take advantage of this opportunity.

20

Lod. Doc. 12 at 2343. However, the defense subsequently interviewed Kellner and recalled her to

21

testify as a defense witness. Id. at 2747-49. In short, petitioner fails to show how the

22

prosecution’s failure to provide petitioner with Kellner’s address violated Brady, deprived him of

23

access to Kellner such that he could not adequately present his defense, or violated any of

24

petitioner’s other constitutional rights. Accordingly, petitioner’s claim is not well taken.

25
26

d. Intercepted Confidential Defense Communications
Petitioner also argues that the prosecutor engaged in misconduct that unduly prejudiced

27

petitioner and violated his Sixth Amendment right to counsel by intercepting confidential

28

communications between him and his counsel. Specifically, petitioner contends that the
16

1

prosecutor engaged in two instances of such behavior: (1) the prosecutor had her investigator,

2

Detective Rees, glance at defense counsel’s handwritten notes during the trial, and (2) the

3

prosecutor herself looked through a pile of documents on the defense’s table.

4

“The Sixth Amendment provides that an accused shall enjoy the right ‘to have the

5

Assistance of Counsel for his defense.’ This right, fundamental to our system of justice is meant

6

to assure fairness in the adversary criminal process. [Citations omitted.]” U.S. v. Morrison, 449

7

U.S. 361, 364 (1981). Governmental conduct must be proved to render counsel's assistance to the

8

defendant ineffective in order to constitute a violation of this right. Id. “Sixth Amendment

9

deprivations are subject to the general rule that remedies should be tailored to the injury suffered

10

from the constitutional violation and should not unnecessarily infringe on competing interests.”

11

Id. “In addition, certain violations of the right to counsel may be disregarded as harmless error.”

12

Id. at 365; see also U.S. v. Rogers, 751 F.2d 1074, 1078 (1985) (“When the action of Government

13

agents involves a violation of the defendant's constitutional rights and yet does not require

14

dismissal of the indictment, it would follow, a fortiori, that merely inducing a witness to violate

15

an ethical obligation of confidentiality to a client would not require dismissal of the indictment.”)

16

More specifically with regard to defense communications, the Supreme Court has held

17

that “when conversations with counsel have been overheard, the constitutionality of the

18

conviction depends on whether the overheard conversations have produced, directly or indirectly,

19

any of the evidence offered at trial.” Weatherford v. Bursey, 429 U.S. 545, 552 (1977).

20

Furthermore, when an agent of the prosecution overhears such conversations, there can be no

21

Sixth Amendment violation “unless [the agent] communicated the substance of the [attorney-

22

client] conversations and thereby created at least a realistic possibility of injury to [the defendant]

23

or benefit to the State.” Id. at 558.

24

Here, petitioner asserts that during trial Detective Rees, the prosecutor’s investigator,

25

glanced over at the defense’s table and read defense counsel’s handwritten notes. Petitioner

26

claims that he and his counsel were made aware of this conduct when Detective Rees leaned over

27

to petitioner’s trial counsel and told petitioner’s counsel that his name was not spelled “Reece,” as

28

petitioner’s counsel had been writing in his notes. After this happened, petitioner filed a motion
17

1

to dismiss based on an assertion that the prosecutor had violated her duty not to eavesdrop on

2

defense communications. Lod. Doc. 11 at 471-72. The trial court held a hearing on this motion,

3

during which petitioner’s counsel, the prosecutor, and Detective Rees testified. Lod Doc. 12 at

4

2456-90. During his testimony, Detective Rees responded to questioning regarding his viewing

5

of defense counsel’s notes by testifying that he had not intentionally read any defense notes and

6

had only inadvertently noticed that his name had been misspelled on the paper pad defense

7

counsel had been writing on because the courtroom’s seating arrangements for the prosecution

8

and defense had left him sitting only inches away from defense counsel. Id. at 2470-75. After

9

hearing the testimony, other evidence, and the parties’ arguments on the matter, the trial court

10

made a factual determination finding Detective Rees’s testimony to be true and denied

11

petitioner’s motion to dismiss. Id. at 2488.
Petitioner contends that the court’s factual finding was incorrect and that Detective Rees

12
13

lied in in his testimony. However, under § 2254, “a determination of a factual issue made by a

14

State court shall be presumed to be correct” and the petitioner has “the burden of rebutting the

15

presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

16

Petitioner provides little more than his own conclusory disbelief of Detective Rees’s testimony to

17

support his argument. Such a showing is insufficient to demonstrate that the trial court’s factual

18

determination was incorrect under the applicable “clear and convincing evidence” standard.

19

Moreover, even had Detective Rees intentionally glanced at defense counsel’s notes and

20

obtained material information regarding defense’s trial strategy as petitioner asserts, there is no

21

indication that Detective Rees relayed any of that information to the prosecutor, let alone any

22

suggestion that the prosecutor used such information to produce evidence at trial against

23

petitioner, or used it in a manner that was unduly prejudicial. Accordingly, even if petitioner’s

24

factual assertion were correct, there is no evidence that a Sixth Amendment violation arose out of

25

the Detective Rees’s alleged conduct. See Weatherford, 429 U.S. at 558.

26

/////

27

/////

28

/////
18

1

With regard to petitioner’s assertion that the prosecutor looked through a pile of

2

documents on the defense’s desk, petitioner claims that the prosecutor’s statement during trial

3

that she knew that the defense team had 18 copies of a particular document on their desk

4

demonstrates that she had previously looked through the defense’s documents. At trial, the

5

prosecutor testified that she knew that the defense had 18 copies of the document because she

6

knew that there needed to be a copy for each of the 12 jurors and 3 alternate jurors and copies for

7

the prosecution, the defense, and the court, not because she had looked at the defense’s

8

documents. Lod. Doc. 12 at 2466-67. The trial court found the prosecutor’s testimony truthful

9

and denied petitioner’s motion to dismiss based on the prosecutor’s alleged misconduct. Id. at

10

2488. As with Detective Rees’s alleged conduct, petitioner provides nothing beyond mere

11

conjecture in his petition that the prosecutor lied to support his assertion that she had looked

12

through the defense’s documents. This is insufficient to call into question the trial court’s factual

13

determination that the prosecutor had not engaged in such misconduct. See 28 U.S.C. §

14

2254(e)(1).

15
16
17
18

In short, petitioner fails to show that the above actions by the prosecution violated his
Sixth Amendment right to assistance of counsel. Therefore, his argument is not well taken.
e. Engaged in Witness Tampering
Next, petitioner argues that the prosecutor engaged in witness tampering by suggesting to

19

witness Kellner during a pretrial meeting that petitioner was responsible for the death of Kellner’s

20

and petitioner’s one-week old daughter in 1997. Petitioner asserts that this conduct violated his

21

right to due process because the prosecutor made these statements to Kellner in order to influence

22

Kellner’s testimony when she testified at trial.

23

During a pretrial interview with Kellner, the prosecutor inquired about the cause of death

24

of Kellner’s and petitioner’s one-week old daughter in 1997. The prosecutor raised the topic

25

because the infant’s autopsy report showed that she had had fluid in her lungs at the time of her

26

death and a police report from just prior to the baby’s birth and death regarding allegations of a

27

domestic dispute between petitioner and Kellner contained a statement by Kellner that Amanda

28

Moro told her that petitioner caused the baby’s death when he accidentally hit the unborn child in
19

1

the womb when trying to hit Kellner. Lod. Doc. 12 at 2431-34. Based on this information and

2

the fact that the autopsy report stated that the cause of the infant’s death was unknown, the

3

prosecutor thought it necessary to inquire into the infant’s death when interviewing Kellner to get

4

her take on what happened. Id. at 2432. However, when the prosecutor asked Kellner during the

5

interview whether she wanted to review the autopsy report and answer questions on the subject,

6

Kellner declined. Id. at 2434. The prosecutor “accepted and respected” Kellner’s refusal to

7

discuss the matter and ended her inquiry into the subject. Id.

8
9

Petitioner’s trial counsel brought a midtrial motion to dismiss all charges asserting that the
prosecutor’s inquiry into the infant’s death was “outrageous conduct” that violated petitioner’s

10

right to due process. Lod. Doc. 11 at 390-95. However, the trial court denied the motion

11

following an evidentiary hearing on the issue, finding that “Kellner’s testimony was not in any

12

way affected by the conduct of [the prosecutor].” Lod. Doc. 12 at 1252-54.

13

As the trial court determined, there is no indication that the prosecutor’s statements during

14

the pretrial meeting unduly biased Kellner or were otherwise so outrageous as to violate

15

petitioner’s right to due process. Indeed, during trial, Kellner briefly took the stand and testified

16

to petitioner’s good character, Lod. Doc. 12 at 2747-50, which indicates that the prosecutor’s

17

conduct did not negatively influence Kellner’s ability to provide unbiased testimony.

18

Furthermore, Kellner testified at trial that the prosecutor’s pretrial inquiry into the death of her

19

child did not in any way impact her trial testimony. Id. at 2294-96. Accordingly, petitioner fails

20

to show that the prosecutor’s pretrial statements to Kellner unduly prejudiced Kellner to such a

21

degree that her testimony rendered petitioner’s trial so fundamentally unfair as to violate due

22

process.

23

f. Knowingly Elicited Perjured Testimony from the Victim and Witness

24

Skallerud

25

Petitioner contends that the prosecutor knowingly elicited false testimony from the victim

26

that petitioner had cut her genitals and from petitioner’s ex-girlfriend, Melissa Skallerud, that he

27

had struck her back with a belt. Petitioner argues that the prosecution’s misconduct in soliciting

28

this perjured testimony violated his right to due process.
20

1

It is well established that a conviction obtained through the prosecution’s knowing use of

2

false evidence, including false testimony, violates the Fourteenth Amendment’s Due Process

3

clause. Napue v. People of State of Ill., 360 U.S. 264, 269 (1959). Similarly, due process is

4

violated “when the State, although not soliciting false evidence, allows it to go uncorrected when

5

it appears.” Id. A new trial is required if “the false testimony could . . . in any reasonable

6

likelihood have affected the judgment of the jury . . .” Id. at 271. In short, due process is

7

violated, and reversal is required, “if (1) the testimony was actually false, (2) the prosecutor knew

8

it was false, and (3) the false testimony was material (i.e., there is a reasonable likelihood that the

9

false testimony could have affected the judgment).” Dow v. Virga, 729 F.3d 1041, 1048 (9th Cir.

10

2013) (citing Napue, 360 U.S. at 271-72).

11
12

i.

The Victim’s Testimony

With regard to the victim’s testimony, petitioner contends that the victim falsely testified

13

that petitioner had cut her on the exterior of her genitalia during the 2009 campsite incident.

14

Petitioner argues that this statement was false because a hospital report from a week after the

15

incident noted that no cuts were detected during a physical examination. Petitioner argues further

16

that the prosecutor knowingly elicited this false statement because she made the following

17

assertion in her closing argument based on the victim’s testimony:

18
19
20
21
22
23

When inflicting the injury, the defendant intended to cause cruel or
extreme pain. He cut her genitalia. At the hospital they are more
concerned about her head. But it was there, according to the victim.
One person’s testimony is good enough. The doctor has testified
that area heals quickly. He has not found it in that length of time.
It wasn’t even dealt with until after she got home from the hospital.
Lod. Doc. 12 at 2931.
A review of the record fails to support petitioner’s assertion that the prosecutor knowingly

24

elicited false material testimony from the victim. First, the record fails to support petitioner’s

25

contention that the victim’s statement was demonstrably false. At trial, the victim testified that

26

petitioner “had something in his hand,” that “[i]t felt like he had cut [her] with it,” and that she

27

felt “[a] lot of stinging.” Lod. Doc. 12 at 1657-58 (emphasis added). The victim further

28
21

1

acknowledged during direct examination that no cuts were found on the outside of her genitalia

2

during the physical examination conducted a week after the incident. Id. at 1665-66. On cross-

3

examination, she testified that she believed that the cut had healed by the time the physical

4

examination took place. Id. at 2005. Prior to the victim’s testimony, Dr. Saunders testified that

5

while external injuries to the vaginal area do not heal as quickly as internal injuries, that area still

6

“heals quickly.” Id. at 1379, 1385. Given this evidence indicating that it was at least conceivable

7

that the victim’s purported cut could have healed in the week between the campsite incident and

8

the victim’s physical examination, petitioner fails to demonstrate that the victim’s statement was

9

actually false.
Moreover, even assuming the victim’s testimony regarding the cut was false, the above

10
11

evidence does not give rise to a reasonable inference that the prosecutor was aware that the

12

victim’s testimony was false; the testimony provided a sufficient basis for the prosecutor to make

13

her comments during closing arguments regarding the cut the victim described.

14

Finally, and most importantly, petitioner fails to show how the victim’s statement

15

regarding the cut was material to the outcome of the jury’s verdict. There exists ample evidence

16

in the record of petitioner engaging in other acts of violence against the victim during the 2009

17

campsite incident that supported the charges against him, including evidence that petitioner had

18

repeatedly hit and kicked the victim over the course of their stay at the campsite, such that there

19

was not a reasonable likelihood that a false statement regarding the cut to the victim’s genitalia

20

could have affected the jury’s verdict on any of the charges for which petitioner was found

21

guilty.

22

ii.

Skallerud’s Testimony

23

Petitioner argues that Skallerud falsely testified that petitioner bruised her back by

24

attacking her with a belt during a domestic violence incident carried out by petitioner against her

25

in 2002. Petitioner contends that Skallerud’s testimony regarding the injuries she received during

26

that incident was contradicted by a medical report. Specifically, petitioner argues that Skallerud’s

27

testimony was refuted by the finding in the medical report that there were no bruises on

28

Skallerud’s back. However, the report petitioner cites to in support of his argument noted that
22

1

Skallerud had bruising on the upper part of one of her hips. ECF No. 12 at 145. Such a minor

2

discrepancy regarding where the bruising was located fails to compellingly show that Skallerud

3

gave false testimony. Indeed, Skallerud later clarified in her testimony that she had received

4

bruising on her “lower, mid-back region” as a result of petitioner’s hitting her with a belt. Lod.

5

Doc. 12 at 1397. A plausible inference can be drawn that Skallerud may have considered the

6

location of the bruising identified in the report as being part of her lower back area.

7

Moreover, petitioner merely asserts in a conclusory fashion that the prosecutor was aware

8

of the contradiction, but did nothing to try to correct Skallerud’s statement. Even assuming

9

Skallerud’s testimony was false, petitioner provides no evidence plausibly indicating that the

10
11

prosecutor knowingly elicited, or was even aware of, the alleged perjury.
Finally, and most importantly, petitioner fails to demonstrate that the minor discrepancy

12

he highlights with regard to the location of Skallerud’s bruises created a reasonable likelihood

13

that the jury’s judgment in his case was impacted by Skallerud’s allegedly false statement. The

14

2002 incident between petitioner and Skallerud that was the subject of Skallerud’s testimony had

15

no direct bearing on the charges that were brought against petitioner in this case, all of which

16

involved a separate incident between petitioner and the victim in 2009. Indeed, Skallerud had no

17

involvement in the events that formed the basis for the charges against petitioner and the

18

prosecution only had her testify for the purpose of introducing evidence pursuant to California

19

Evidence Code § 1109 that petitioner had committed prior acts of domestic violence. See Lod.

20

Doc. 12 at 1389-1404. Accordingly, there was no reasonable likelihood that Skallerud’s

21

allegedly false testimony could have impacted the jury’s verdict on the charges brought against

22

petitioner.

23

Because petitioner fails to show that the prosecutor either elicited or was aware of and did

24

not correct materially false statements made by either the victim or Skallerud, his due process

25

claim is without merit.

26
27
28

g. Made Impermissible Inferences in her Closing Argument
Petitioner also argues that during her closing argument the prosecutor misrepresented
evidence regarding whether petitioner had engaged in sexual relations with the victim.
23

1

Specifically, petitioner asserts that the prosecutor took out of context petitioner’s response to a

2

question asked by Detective Rees during an interview regarding whether petitioner had had sex

3

with a female that Detective Rees did not specifically identify. Petitioner argues that petitioner’s

4

affirmative response to the question was with regard to a woman other than the victim; he asserts

5

that his answers to Detective Rees’s questions both before and after that question demonstrate

6

that petitioner intended his response to mean that he had had sex with another woman he had been

7

married to on their wedding day in 2002. Petitioner claims that the prosecutor improperly

8

mischaracterized petitioner’s statement during her closing argument to insinuate that petitioner

9

had taken the victim to the campsite in order to rape her so that he could consecrate a marriage.

10

Petitioner asserts that a transcript of his interview with Detective Rees was produced by

11

the prosecution during discovery. However, petitioner fails to attach a transcript of that interview

12

to his operative petition, did not attach it to any of his previous habeas petitions in state or federal

13

court, and the interview itself was never introduced at trial. Without any supporting evidence

14

from the record, petitioner’s conclusory allegation that the prosecutor mischaracterized his

15

statement to Detective Rees during the interview is insufficient to support his claim. See James v.

16

Borg, 24 F.3d 20, 26 (9th Cir. 1994) (“Conclusory allegations which are not supported by a

17

statement of specific facts do not warrant habeas relief.”).

18

Moreover, a review of the trial record shows that there was evidence introduced at trial

19

from which the prosecutor could have reasonably drawn the inference that she did in her closing

20

argument. For instance, Detective Rees testified at trial that when he had asked petitioner

21

whether he had had sex with the victim, petitioner stated that he and the victim “were going to get

22

married” and that “it was his wedding day when he left her.” Lod. Doc. 12 at 2557. Such

23

evidence permitted the prosecutor the latitude to draw from it the inference that she did during her

24

closing argument. See Ceja v. Stewart, 97 F.3d 1246, 1243 (9th Cir. 1996) (“Counsel are given

25

latitude in the presentation of their closing arguments, and courts must allow the prosecution to

26

strike hard blows based on the evidence presented and all reasonable inferences therefrom.”).

27

Therefore, the prosecutor’s argument did not improperly manipulate or misstate the evidence.

28

////
24

1

Moreover, even assuming that the prosecution lacked evidentiary support for the inference

2

she drew regarding petitioner’s motivation for bringing the victim to the campsite, the

3

prosecutor’s argument to that effect did not amount to a due process violation. The Supreme

4

Court has held that it “is not enough that the prosecutors’ remarks [be] undesirable or even

5

universally condemned.” Darden, 477 U.S. at 181. Rather, the improper comments must have

6

“so infected the trial with unfairness as to make the resulting conviction a denial of due process.”

7

Id. Here, the jury ultimately acquitted petitioner of the charges of rape, attempted rape, and of

8

kidnapping for rape, demonstrating that the jurors did not accept the prosecution’s theory asserted

9

during closing that petitioner brought the victim to the campsite for the purpose of raping her in

10

order to consecrate their marriage. Lod. Doc. 11 at 607, 610-11. Petitioner argues in his traverse

11

that the prosecutor’s comment still prejudiced him despite the acquittal of the rape-related charges

12

because he was convicted of the lesser included offense of battery, which could have provided a

13

basis for the jury’s guilty verdict with regard to the torture charge. However, as discussed above,

14

there was ample other evidence introduced regarding petitioner’s other acts of violence against

15

the victim during the 2009 campsite incident, such as evidence that petitioner repeatedly hit and

16

kicked the victim over the course of their stay, from which the jury could have reasonably found

17

petitioner guilty of those charges. Accordingly, petitioner fails to show that there was a

18

reasonable likelihood that the prosecutor’s statement during her closing argument unduly affected

19

the jury’s verdict.8

20

h. Failed to Disclose or Preserve Exculpatory Evidence

21

Petitioner contends further that the prosecution improperly: (1) failed to disclose

22

exculpatory evidence that the victim had suffered 11 prior skull fractures; (2) failed to preserve

23

exculpatory evidence showing that petitioner had left gold panning tools at the campsite where

24
8

25
26
27
28

Petitioner also appears to argue for the first time in his traverse that the prosecutor also
misrepresented evidence regarding the extent of the victim’s prior injuries and whether petitioner
had cut the victim’s genitalia. In addition to the fact that petitioner improperly raises these
arguments for the first time in his traverse, Cacoperdo, 37 F.3d at 507, they also appear to be
duplicative of petitioner’s arguments regarding the evidence of the victim’s prior skull fractures
addressed below and the victim’s allegedly perjured testimony addressed above. Accordingly,
the court declines to address these arguments with regard to petitioner’s current claim.
25

1

the 2009 incident took place; and (3) refused to grant immunity to witness Amanda Moro, who

2

would have testified that petitioner had purchased a metal detector for purposes of gold panning.

3

i.

4

Prior Skull Fractures

Petitioner first contends that in violation of Brady, the prosecution improperly suppressed

5

evidence that the victim had suffered 11 skull fractures prior to the 2009 campsite incident.

6

During the trial, Detective Blaney testified that the victim had told Detective Blaney that her

7

doctors had told her that she had suffered 11 separate skull fractures prior to the 2009 incident.

8

Lod. Doc. 12 at 2667-69. However, petitioner fails to provide any indication as to what material

9

evidence the prosecution had in its possession regarding the victim’s purported skull fractures or

10

other prior head injuries that it suppressed.9 Indeed, the prosecution noted at trial that it had

11

provided petitioner with the evidence it had in its possession related to the victim’s medical

12

health. Lod. Doc. 12 at 1357. Accordingly, petitioner fails to show that the prosecution

13

committed a Brady violation.

14

Petitioner also appears to argue that the prosecution should have presented the information

15

regarding the victim’s prior skull fractures to the jury for purposes of showing that the victim did

16

not require force likely to cause great bodily injury in order to sustain the injuries she did as a

17

result of the 2009 campsite incident. However, the only indication in the record that the victim

18

had 11 skull fractures was the victim’s own statement to Detective Blaney, which conflicted with

19

other evidence produced at trial. For example, Dr. Saunders testified that C.T. scans taken of the

20

victim’s face soon after the 2009 campsite incident showed that she had only one nasal fracture

21

that was consistent with blunt force trauma that was no more than a few weeks old. Lod. Doc. 12

22

at 1380-82. Beyond the victim’s own testimony at trial, which conflicted with other evidence,

23
24
25
26
27
28

9

In his traverse, petitioner appears to assert for the first time that the prosecution improperly
failed to provide to petitioner a more detailed medical report regarding the extent and impact of
the victim’s prior head injuries. Petitioner’s use of his traverse to raise this argument for the first
time with regard to his claim is procedurally improper. See Cacoperdo, 37 F.3d at 507.
Moreover, this argument is identical to the argument petitioner makes with regard to petitioner’s
claim that the prosecution withheld documentation of the victim’s medical history in violation of
Brady that is addressed in detail below. Therefore, the court declines to address this argument
with regard to petitioner’s current claim.
26

1

there is no indication that the victim had 11 prior skull fractures. The prosecution did not

2

improperly misstate the evidence or otherwise distort the fact-finding process by not emphasizing

3

to the jury that the victim had such prior head injuries. Accordingly, petitioner’s claim is without

4

merit.

5
6

ii.

Gold Panning Equipment

Next, petitioner contends that the prosecution’s investigators failed to preserve petitioner’s

7

gold panning tools that were located at the scene of the 2009 campsite incident in violation of the

8

Supreme Court’s rulings in and California v. Trombetta, 467 U.S. 479 (1984) and Arizona v.

9

Youngblood, 488 U.S. 51 (1988).

10

In Trombetta, the Supreme Court held that the government violates a criminal

11

defendant’s right to due process when it fails to preserve evidence with “exculpatory value that

12

was apparent before the evidence was destroyed, and [is] of such a nature that the defendant

13

would be unable to obtain comparable evidence by other reasonably available means.” 467 U.S.

14

at 489. In Youngblood, the Supreme Court added the additional requirement that a defendant

15

demonstrate that the police acted in bad faith in failing to preserve the potentially useful evidence.

16

488 U.S. at 58.

17

Here, petitioner argues that he had left gold panning equipment at the scene of the 2009

18

campsite incident that the prosecution’s investigators failed to preserve when they initially

19

gathered evidence at the crime scene after the incident. Petitioner argues that the gold panning

20

equipment was exculpatory in that it corroborated the defense’s theory that petitioner was not the

21

one who assaulted the victim because he had been away from the campsite panning for gold at the

22

time she was attacked. Petitioner also contends that the equipment was likely stolen between the

23

time when the prosecution’s investigators failed to secure it during their initial examination of the

24

crime scene on May 28, 2009 and when they returned to investigate the site further on June 11,

25

2009 and did not find any such equipment.

26

Even assuming that the gold panning equipment was present at the crime scene when the

27

investigators initially examined it for evidence, petitioner fails to show how that equipment’s

28

exculpatory value was readily apparent to the investigators at that time. The evidence presented
27

1

at trial regarding what occurred in the time between when emergency personnel were dispatched

2

to the crime scene and the time of the initial investigation does not suggest that the gold panning

3

equipment had a readily apparent exculpatory value. Indeed, testimony from witnesses present at

4

the time emergency services arrived on the scene stated that petitioner told them he was present at

5

the campsite during the time the victim was attacked and witnessed the attack himself. Lod. Doc.

6

12 at 1068, 1126. There is no evidence that petitioner or anyone else had told law enforcement

7

prior to the initial investigation that petitioner had been gold panning at the time of the incident,

8

nor was there any evidence that reasonably suggested that any gold panning equipment at the

9

campsite otherwise needed to be preserved. Accordingly, the exculpatory nature of the gold

10

panning equipment petitioner claims was at the campsite would not have been immediately

11

apparent to investigators under the circumstances.

12

Furthermore, petitioner fails to show that the prosecution acted in bad faith in failing to

13

secure the gold panning equipment at the crime scene. Petitioner first claimed to law

14

enforcement that he had been gold panning at the time of the incident during a post-arrest

15

interview that took place on June 10, 2009. Lod. Doc. 12 at 2085. The next day, the

16

prosecution’s investigators returned to the crime scene in search of gold panning equipment and

17

did not find any, but did find and preserve several other items. Id. at 1217, 1243-49. This

18

evidence, and indeed the rest of the record, does not suggest that the prosecution acted in bad

19

faith when investigating the crime scene. Therefore, petitioner fails to demonstrate that the

20

prosecution’s conduct was in violation of the Supreme Court’s holdings in Trombetta and

21

Youngblood.

22
23

iii.

Moro’s Testimony

Petitioner also argues that prospective defense witness Amanda Moro would have taken

24

the stand and testified that petitioner had purchased a metal detector for purposes of gold panning

25

had the prosecution granted her use immunity. The prosecution did not grant such immunity,

26

however, and Moro invoked her Fifth Amendment right against self-incrimination and declined to

27

testify. Petitioner claims that the prosecution’s failure to grant immunity to Moro was done in an

28

attempt to distort the fact finding process and prevent petitioner from putting on a complete
28

1
2

defense.
As an initial matter, the court notes that petitioner provides no authority or evidence to

3

support his claim. Furthermore, the court is not aware of any clearly established Supreme Court

4

case law that supports petitioner’s claim. While the Ninth Circuit Court of Appeals has

5

recognized that a violation of due process occurs when a prosecutor deliberately refuses to grant

6

testimonial use immunity to a relevant witness for the specific purpose of distorting the fact-

7

finding process, United States v. Sedaghaty, 728 F.3d 885, 916 (9th Cir. 2013), such precedent

8

cannot properly support habeas relief. Parker v. Matthews, 132 S. Ct. 2148, 2155 (2012) (quoting

9

Renico v. Lett, 559 U.S. 766, 777 (2010)) (“[C]ircuit precedent does not constitute ‘clearly

10

established Federal law, as determined by the Supreme Court . . . .’”); see also Arredondo, 365

11

F.3d at 782 (holding habeas petitioner’s “reliance on Ninth Circuit or other circuit authority is

12

misplaced” because 28 U.S.C. § 2254(d)(1) requires a decision that was “contrary to, or involved

13

an unreasonable application of, clearly established Federal law, as determined by the Supreme

14

Court.”).

15

Moreover, petitioner’s claim still fails even under the Ninth Circuit’s standard. During

16

trial, the defense requested the court to grant use immunity to proposed defense witness Amanda

17

Moro, petitioner’s brother’s girlfriend, so she could testify that she did not observe petitioner

18

physically harm the victim or hold her against her will while they were all traveling from

19

Placerville to Siskiyou County. Lod. Doc. 11 at 383-89. Without immunity, Moro intended to

20

invoke her Fifth Amendment right to silence during cross examination. Accordingly, petitioner

21

argued at trial that immunity was necessary in order for petitioner to present a complete defense.

22

Id. The trial court ultimately denied the request for judicial immunity for Moro, finding that

23

testimony was not “clearly exculpatory” or “essential” because the charged offenses arose from

24

petitioner’s conduct after he and the victim had been dropped off by Moro at the campsite in

25

Siskiyou County. Lod. Doc. 12 at 2536-45, 2550. The trial court did “not find that there has

26

been any government effort to distort the judicial fact-finding process in its decision to not pursue

27

immunity for Ms. Moro under the circumstances of this case.” Id. at 2547, 2550. This

28

determination was reasonable in light of the Ninth Circuit’s case law as Moro’s anticipated
29

1

testimony concerned events that occurred before the time the charged offenses allegedly took

2

place and, therefore, was only tangentially related to the case. Accordingly, petitioner’s claim is

3

without merit.
i. Attempted to use Petitioner’s Post-Arrest Silence Against Him

4
5

Petitioner also asserts that the prosecutor improperly attempted to use petitioner’s post-

6

arrest silence against him in violation of the Supreme Court’s ruling in Doyle v. Ohio, 426 U.S.

7

610 (1976).

8

A suspect has a constitutional right not to speak to police after he is arrested and given his

9

Miranda warnings. Miranda v. Arizona, 384 U.S. 436, 479 (1966). As an extension of that right,

10

the Supreme Court held in Doyle that prosecutors are prohibited from commenting on a

11

defendant’s post-Miranda silence. 426 U.S. at 618-19; see also United States v. Lopez, 500 F.3d

12

840, 844 (9th Cir. 2007) (noting that a prosecutor’s comment on defendant’s post-Miranda silence

13

violates Doyle). The rationale for this rule “rests on the fundamental unfairness of implicitly

14

assuring a suspect that his silence will not be used against him and then using his silence to

15

impeach an explanation subsequently offered at trial.” Wainwright v. Greenfield, 474 U.S. 284,

16

291 (1986) (citation and internal quotation marks omitted) (holding that prosecution may not use

17

defendant’s silence during case-in-chief).

18

Here, petitioner contends that the prosecutor improperly elicited testimony from Detective

19

Blaney that referenced petitioner’s post-arrest silence. When the prosecutor asked whether

20

Detective Blaney had asked petitioner during a post-arrest interview how petitioner and the victim

21

“got from Placerville to Dunsmuir,” Detective Blaney responded as follows: “He told me that a

22

friend dropped him off at the river, but he refused to name who the friend was.” Lod. Doc. 12 at

23

2715. Petitioner’s defense counsel immediately objected on the ground that it violated Doyle. Id.

24

After a bench conference was held, the trial court sustained petitioner’s objection, struck

25

Detective Blaney’s answer from the record, and advised the jury that Detective Blaney’s response

26

should not be considered for any purpose in petitioner’s case. Id.

27
28

The Supreme Court held in Greer v. Miller that a court’s use of measures such as those
utilized by the trial court in petitioner’s case are sufficient to prevent the use of a defendant’s
30

1

post-arrest silence in violation of Doyle. 483 U.S. 756, 764 (1987) (holding that no Doyle

2

violation occurred when “the court explicitly sustained an objection to the only question that

3

touched upon [the defendant’s] postarrest silence[, n]o further questioning or argument with

4

respect to [the defendant’s] silence occurred, and the court specifically advised the jury that it

5

should disregard any questions to which an objection was sustained”). Like the trial court in

6

Greer, the trial court here sustained petitioner’s objection to Detective Blaney’s testimony

7

regarding petitioner’s silence, permitted no further questioning or argument regarding petitioner’s

8

post-arrest silence, and advised the jury to disregard Detective Blaney’s testimony on that subject.

9

In short, petitioner’s post-arrest silence was not submitted to the jury as evidence from which it

10

was allowed to draw any inferences. Therefore, no Doyle violation occurred and petitioner’s

11

argument regarding the use of his post-arrest silence is without merit.

12

j. Failed to Provide Victim’s Medical History

13

Petitioner also argues that the prosecutor improperly withheld evidence of the victim’s

14

past medical history in violation of the Supreme Court’s rulings in Brady and Pennsylvania v.

15

Ritchie, 480 U.S. 39 (1987). Specifically, petitioner asserts that the prosecution deprived him of

16

his ability to effectively question prosecution witness Dr. Saunders regarding the extent of the

17

victim’s previously-existing injuries because Dr. Saunders could no longer recall the specifics of

18

such injuries and did not bring copies of the victim’s medical records to refresh his recollection.

19

With regard to petitioner’s assertion pursuant to Brady, the trial record demonstrates that

20

the prosecution produced the documents within its possession related to the victim’s medical

21

health, including any exculpatory information it had in its possession. Lod. Doc. 12 at 1357.

22

Indeed, petitioner even acknowledges in both his first amended petition and traverse that the

23

prosecution produced the victim’s medical records during discovery. ECF Nos. 12 at 52, 46 at

24

37. Petitioner argues, however, that the prosecution should have been required to provide a more

25

detailed medical history. This argument is without merit; the prosecution did not have a

26

constitutional duty to obtain and produce the more detailed medical information to which

27

petitioner claims he was entitled. See Weatherford v. Bursey, 429 U.S. 545, 559 (1977) (quoting

28

Wardius v. Oregon, 412 U.S. 470, 474 (1973)) (“There is no general constitutional right to
31

1

discovery in a criminal case, and Brady did not create one; as the Court wrote recently, ‘the Due

2

Process Clause has little to say regarding the amount of discovery which the parties must be

3

afforded . . . .’”). If petitioner wanted more information regarding the victim’s medical history, it

4

was incumbent upon him to have sought those more detailed records through subpoenas or other

5

proper methods.

6

Similarly, petitioner fails to show how the admission of Dr. Saunders’s testimony was

7

contrary to the Supreme Court’s holding in Ritchie. Petitioner appears to argue that his rights

8

under the Sixth Amendment’s Confrontation Clause were violated because he was unable to

9

effectively cross-examine Dr. Saunders given the limited information petitioner had with regard

10

to the victim’s medical history with which he could prepare his examination and Dr. Saunders’s

11

inability to testify to the details of that topic without further information to refresh his

12

recollection. However, as the Supreme Court provided in Ritchie:

13

The ability to question adverse witnesses . . . does not include the
power to require the pretrial disclosure of any and all information
that might be useful in contradicting unfavorable testimony.
Normally the right to confront one's accusers is satisfied if defense
counsel receives wide latitude at trial to question witnesses. In
short, the Confrontation Clause only guarantees an opportunity for
effective cross-examination, not cross-examination that is effective
in whatever way, and to whatever extent, the defense might wish.

14
15
16
17
18
19

480 U.S. at 52-53 (internal citations and quotation marks omitted). Here, the record shows that

20

petitioner enjoyed the sort of wide latitude to examine Dr. Saunders and the other witnesses that

21

the Supreme Court in Ritchie found sufficient to meet the Confrontation Clause’s requirements.

22

Accordingly, petitioner’s argument is without merit.10

23
24
25
26
27
28

10

Petitioner also appears to argue in his traverse that Dr. Saunders’s testimony to the extent he
was able to provide it failed to meet the standards for expert testimony that the Supreme
articulated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Aside from
the fact that this claim is inappropriately raised for the first time in petitioner’s traverse, see
Cacoperdo, 37 F.3d at 507, it also is not cognizable under § 2254. A federal court may not grant
habeas relief based on a belief that the state trial court made an incorrect evidentiary ruling under
state evidence law. Briceno v. Scribner, 555 F.3d 1069, 1077 (9th Cir. 2009) (citing Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991)) (“Our habeas powers do not allow us to vacate a conviction
‘based on a belief that the trial judge incorrectly interpreted the California Evidence Code in
32

1

k. Improperly Attempted to Elicit Prior Bad Acts Testimony

2

Petitioner contends that the prosecutor impermissibly presented propensity evidence in the

3

form of petitioner’s prior acts of drug use and domestic violence, in violation of petitioner’s right

4

to due process.

5

With regard to the evidence of past drug use, witness Kellner speculated during her trial

6

testimony as to whether petitioner had been drinking or doing drugs during a 1997 encounter she

7

had with him. Lod. Doc. 12 at 1418-19. Petitioner’s counsel immediately objected to this

8

statement. Id. The trial court sustained the objection, struck the testimony, and instructed the

9

jury to disregard Kellner’s statement. Id. With regard to the evidence of domestic violence, Ms.

10

Kellner testified that during the 1997 incident, petitioner hit her while she was 8-months

11

pregnant, an act for which petitioner pleaded guilty to a felony. Id. at 1415-24.

12

In Estelle v. McGuire, the Supreme Court expressly declined to express an opinion on the

13

issue of whether the Due Process Clause is violated by the admission of prior bad acts evidence to

14

show that the defendant has a propensity to commit a charged crime. 502 U.S. 62, 74 (1991)

15

(“Because we need not reach the issue, we express no opinion on whether a state law would

16

violate the Due Process Clause if it permitted the use of ‘prior crimes’ evidence to show

17

propensity to commit a charged crime.”). Because there does not exist any clearly established

18

Supreme Court precedent providing that a criminal defendant’s constitutional right to due process

19

is violated by the introduction of prior bad acts as evidence to show propensity, the state trial

20

court’s adjudication was not contrary to or unreasonable in light of clearly established federal

21

law. See Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (noting that the Supreme

22

Court “has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence

23

constitutes a due process violation sufficient to warrant issuance of the writ”). Accordingly,

24

petitioner request for habeas relief based on this argument is denied. 28 U.S.C. § 2254(d).

25

////

26
27
28

ruling’ on the admissibility of evidence.”). Furthermore, the California Supreme Court has
expressly declined to adopt Daubert as the applicable standard in California. People v.
Wilkinson, 33 Cal.4th 821, 843 (2004); People v. Leahy, 8 Cal.4th 587, 593-604 (1994).
33

1

l. Engaged in Pervasive Misconduct

2

Based on the instances of prosecutorial misconduct claimed above, petitioner finally

3

asserts that the prosecutor engaged in pervasive misconduct that violated his due process rights.

4

However, for the reasons discussed above, none of petitioner’s claims of prosecutorial

5

misconduct have merit. Furthermore, petitioner fails to demonstrate that any other of the

6

prosecutor’s actions amounted to a violation of petitioner’s right to due process or any other

7

constitutional right that would warrant habeas relief under § 2254. Accordingly, petitioner’s

8

claim that the prosecution engaged in pervasive misconduct in violation of petitioner’s due

9

process and other constitutional rights is without merit.
In sum, petitioner’s prosecutorial misconduct claims are both procedurally defaulted and

10
11

without merit. Therefore, they are denied.

12

B. Judicial Bias

13

Second, petitioner argues that his right to due process was violated as a result of the state

14

trial court expressing bias against him during his criminal trial. Petitioner contends that this bias

15

was expressed through the trial court’s denial of petitioner’s trial motions, sentencing decision,

16

and appointment of counsel to certain witnesses. More specifically, petitioner asserts that the

17

following seven instances show that the trial court improperly acted with bias against him during

18

his criminal trial: (1) denied petitioner’s motion to dismiss based on the prosecutor’s “Three

19

Strikes” comment in the newspaper; (2) denied petitioner’s motion to dismiss based on the

20

delayed disclosure of the victim’s supplemental statement to Detective Blaney; (3) denied

21

petitioner’s motion to dismiss based on the prosecution’s withholding of Kellner’s address and

22

questioning of Kellner at a meeting; (4) denied petitioner’s motion for mistrial based on the

23

victim’s outbursts while testifying; (5) refused to dismiss juror number 11 after that juror had

24

glimpsed petitioner in the courthouse hallway; (6) imposed consecutive sentences pursuant to

25

California Penal Code § 654 despite petitioner’s objection; and (7) appointed a conflicted attorney

26

to represent petitioner’s brother and brother’s girlfriend (collectively “judicial bias claims”).

27

////

28

////
34

1

1. Procedural Default

2

As with his prosecutorial misconduct claims, petitioner did not raise his judicial bias

3

claims until he filed his first state habeas petition, which the state habeas court denied on the

4

adequate and independent state law ground that petitioner had failed to first raise those claims on

5

direct appeal. See Lod. Docs. 1, 2, 3, 8, 9. Also similar to his prosecutorial misconduct claims,

6

petitioner argues that any procedural default with regard to his judicial bias claims should be

7

excused as his appellate counsel on direct appeal provided ineffective assistance in declining to

8

raise those claims at that time. However, as discussed above with regard to the prosecutorial

9

misconduct claims and below with regard to plaintiff’s claim for ineffective assistance of

10

appellate counsel, documents attached to petitioner’s present habeas petition demonstrate that

11

petitioner’s appellate counsel did not act deficiently in refusing to raise the meritless judicial bias

12

claims petitioner now raises. Accordingly, plaintiff’s argument that the procedural default with

13

respect to his judicial bias claims should be excused due to his appellate counsel’s conduct is

14

without merit and petitioner’s judicial claims are denied under the doctrine of procedural default.

15
16
17
18

2. Claims on the Merits
Moreover, even if petitioner’s judicial bias claims were not procedurally defaulted, his
arguments in support of his claims also lack merit for the following reasons.
a. Denied Petitioner’s Motion for Dismissal Based on the Prosecutor’s

19

“Three Strikes” Comment in the Newspaper

20

Petitioner first argues that the state trial court engaged in misconduct by denying

21

petitioner’s motion for dismissal based on the prosecutor’s erroneous “Three Strikes” comment

22

published in a local newspaper. As discussed above with regard to petitioner’s prosecutorial

23

misconduct claim based on the prosecutor’s comment in the newspaper article, the trial court took

24

reasonable steps to ensure that none of the members of the jury empaneled in petitioner’s case

25

had read the article. The trial court’s decision to deny petitioner’s motion to dismiss based on the

26

article was reasonable in light of the clearly established Supreme Court precedent. Furthermore,

27

the trial court’s response with regard to assessing whether the jurors were aware of the newspaper

28

article in question was adequate and did not exhibit bias against petitioner. The trial judge
35

1

provided a thorough and well-reasoned explanation for why he denied petitioner’s motion; there

2

is no evidence whatsoever of any bias towards petitioner. See Lod. Doc. 12 at 867-75.

3

Accordingly, petitioner’s argument is rejected.
b. Denied Petitioner’s Motion to Dismiss Based on the Delayed

4

Disclosure of Detective Blaney’s Supplemental Report

5
6

Second, petitioner argues that the trial court erred by denying his motion to dismiss based

7

on the prosecution’s delayed disclosure of Detective Blaney’s supplemental report. As discussed

8

above with regard to petitioner’s prosecutorial misconduct claims, the delayed disclosure of

9

Detective Blaney’s supplemental report did not constitute a Brady violation. The trial court

10

similarly found when denying petitioner’s motion to dismiss that the belated disclosure of the

11

supplemental report did not constitute a Brady violation. Lod. Doc. 2498-501. Because no Brady

12

violation occurred as a result of the prosecution’s delayed disclosure, the trial court’s dismissal

13

petitioner’s motion based on that alleged violation was reasonable in light of the clearly

14

established Supreme Court precedent. Therefore, petitioner’s claim is without merit.

15

c. Denied Petitioner’s Motion to Dismiss Based on the Prosecution’s

16

Withholding of Kellner’s Address and Questioning of Kellner at a Pretrial

17

Meeting

18

Third, petitioner argues that the trial court erred by denying his motion to dismiss on the

19

basis that the prosecution improperly withheld witness Kellner’s address and improperly

20

questioned Kellner regarding the 1997 death of her infant child during a pretrial interview. As

21

discussed above with regard to petitioner’s prosecutorial misconduct claims, neither the

22

prosecutor’s failure to provide Kellner’s address, nor her pretrial questioning of Kellner regarding

23

Kellner’s deceased infant violated petitioner’s right to due process, or any other federal right.

24

The trial court also reached this conclusion as to both claims in denying petitioner’s trial motion.

25

Lod. Doc. 12 at 2450-54. Accordingly, the trial court’s decision was not contrary to clearly

26

established Federal law and petitioner’s argument is not well taken.

27

////

28

////
36

1

d. Denied Petitioner’s Motion to Dismiss Based on the Victim’s Outbursts

2

while Testifying

3

Fourth, petitioner contends that the trial court violated petitioner’s right to due process by

4

denying petitioner’s two motions to dismiss based on the victim’s outbursts and overall demeanor

5

while testifying at trial. Specifically, petitioner identifies in his petition the following statements

6

as having had an unduly prejudicial impact on his trial: (1) the victim’s statement that she was no

7

longer afraid of petitioner because “right now he’s in cuffs”; (2) the victim’s statement that

8

“there was so much drugs involved” when she described her drive with petitioner, petitioner’s

9

brother, and petitioner’s brother’s girlfriend; and (3) her disavowal of any involvement by

10

“Jordan” regarding the events at issue in the case. Lod. Doc. 12 at 1731, 1733-34, 1736.

11

As an initial matter, the Supreme Court “has not yet made a clear ruling that admission of

12

irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant

13

issuance of the writ.” Holley, 568 F.3d at 1101. Petitioner asserts that the victim’s statements he

14

highlights in his petition constituted overtly prejudicial evidence. Even assuming, arguendo,

15

however, that petitioner correctly characterizes the statements as prejudicial, the trial court’s

16

decision to deny petitioner’s motion to dismiss on this basis was not contrary to or an

17

unreasonable application of federal law within the meaning of § 2254.

18

Furthermore, petitioner fails to demonstrate that the victim’s outbursts and general

19

demeanor during her testimony rendered petitioner’s trial unfair to such a degree that it violated

20

petitioner’s right to due process. In the context of the many hours of testimony the victim gave

21

and the trial court’s apparent need to balance the interest in affording petitioner with a full and

22

fair ability to cross-examine the victim with the victim’s ability to undergo examination given her

23

fragile mental state, it cannot be reasonably said that the statements petitioner contests gave rise

24

to the sort of undue prejudice needed to sustain a due process claim. Moreover, with regard to the

25

second and third statements petitioner contests, the trial court struck them from the record and

26

advised the jury to disregard them after an objection was raised by petitioner’s counsel. Lod.

27

Doc. 12 at 1733, 1736. In short, the state trial court properly rejected petitioner’s motions for

28

mistrial based on the victim’s outbursts and general demeanor while testifying as such behavior
37

1

did not deprive petitioner of a fair trial. Accordingly, petitioner’s claim on this basis is without

2

merit.

3

e. Refused to Dismiss Juror Number 11 after that Juror had Glimpsed

4

Petitioner in the Courthouse Hallway

5

Fifth, petitioner argues that the trial court improperly refused to dismiss juror number 11

6

after that juror had allegedly glimpsed petitioner in the courthouse hallway while petitioner was

7

being escorted in handcuffs.

8

Generally, “courts cannot routinely place defendants in shackles or other physical

9

restraints visible to the jury.” Deck v. Missouri, 544 U.S. 622, 633 (2005). “[T]he Fifth and

10

Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a trial

11

court determination, in the exercise of its discretion, that they are justified by a state interest

12

specific to a particular trial.” Id. at 629. Without a particularized determination showing that

13

shackling is justified, visible shackling in the courtroom is “‘inherently prejudicial.’” Id. at 635

14

(quoting Chapman v. California, 386 U.S. 18, 24 (1967)). Nevertheless, the Ninth Circuit Court

15

of Appeals, interpreting the Supreme Court’s holding in Deck, has recently held that some jurors’

16

viewing of the defendant being transported in shackles through the courthouse’s public areas does

17

not deprive the defendant of a fair trial in violation of due process. Wharton v. Chappell, 765

18

F.3d 953, 966 (9th Cir. 2014); see also Ghent v. Woodford, 279 F.3d 1121, 1133 (9th Cir.2002)

19

(holding that there was no inherent prejudice where “a few jurors at most glimpsed [defendant] in

20

shackles in the hallway and as he was entering the courtroom”); Castillo v. Stainer, 983 F.2d 145,

21

148 (9th Cir. 1992) (holding that, concerning “a brief and accidental viewing of the defendant in a

22

corridor, chained [at the waist],” “[n]o harm that rises to a constitutional level is done by such an

23

unintended, out-of-court occurrence”); United States v. Halliburton, 870 F.2d 557, 559-61 (9th

24

Cir.1989) (holding that a “brief and inadvertent display of [defendant] in handcuffs” when “he

25

was observed handcuffed to a codefendant by at least two jurors as the elevator doors opened”

26

was not inherently prejudicial).

27
28

Here, petitioner merely contends that juror number 11 briefly glimpsed him in handcuffs
in the courthouse hallway when passing by. This occurrence did not give rise to a violation of
38

1

petitioner’s due process rights. See Deck, 544 U.S. 622; Wharton, 765 F.3d at 966; Ghent, 279

2

F.3d at 1133; Castillo, 983 F.2d at 148; Halliburton, 870 F.2d at 559-61.

3

Nor did the trial court’s refusal to dismiss juror number 11 exhibit the sort of bias

4

petitioner asserts. Indeed, after the incident occurred, the trial judge held a brief hearing during

5

which he asked juror number 11 whether he had observed petitioner outside the courtroom, to

6

which juror number 11 stated he had not. Lod. Doc. 12 at 1405. Later, after juror number 11

7

gave the court a note stating that he remembered that he had actually seen petitioner in the

8

hallway, the trial judge expressed concern that questioning the juror on what he had observed

9

could lead him to draw a prejudicial inference against petitioner and, therefore, declined to

10

conduct a further inquiry. Id. at 1482-83. The trial judge similarly declined to conduct such an

11

inquiry when it was brought to his attention that other jurors might have seen petitioner in the

12

hallway for the same reason expressed with regard to juror number 11, but would address the

13

issue if it later appeared that the situation warranted such intervention. Id. at 1566-67. Such

14

actions on the trial court’s part do not demonstrate the existence of the sort of judicial bias

15

petitioner asserts.

16

Moreover, petitioner fails to point to any evidence in the record plausibly showing that

17

juror number 11 saw petitioner in restraints when he glimpsed petitioner in the hallway. Indeed,

18

petitioner’s claim is directly refuted by the record and the attachments to the operative first

19

amended petition. For instance, when the court questioned the bailiff regarding the procedure

20

that was used to transport petitioner to the courtroom, the bailiff responded that petitioner was

21

unshackled and unchained at the bottom of the hall such that he was unrestrained by the time he

22

was brought through the hallway near the courtroom. Lod. Doc. 12 at 1309-10, 1412, 1567.

23

Furthermore, petitioner’s own counsel on appeal noted in his letter to petitioner attached to the

24

petition that there was “no evidence that [the jurors] had seen [petitioner] in shackles.” ECF No.

25

12 at 150 (emphasis in original). After a review of the record, the court agrees and finds

26

petitioner’s assertion regarding juror number 11 to lack merit.

27

////

28

////
39

1

f. Imposed Consecutive Sentences Pursuant to California Penal Code §

2

654 Despite Petitioner’s Objection
Petitioner also argues that the trial court exhibited bias when it overruled petitioner’s

3
4

objection to the imposition of consecutive sentences under California Penal Code § 654. As an

5

initial matter, the court notes that “[t]he decision whether to impose sentences concurrently or

6

consecutively is a matter of state criminal procedure and is not within the purview of federal

7

habeas corpus.” Cacoperdo, 37 F.3d at 507 (citing Ramirez v. Arizona, 437 F.2d 119, 120 (9th

8

Cir. 1971)); see also Watts v. Bonneville, 879 F.2d 685, 687 (9th Cir. 1989) (holding that federal

9

courts cannot review a claim that a consecutive sentence violated California Penal Code § 654

10

“because 28 U.S.C. § 2254(a) authorizes the federal courts to grant habeas corpus relief only for

11

violations of federal law”). Accordingly, insofar as petitioner asserts that the state court’s

12

decision to impose a consecutive sentence was in violation of § 654, such a claim is not

13

cognizable under § 2254.11
In addition, the trial court’s decision to impose a consecutive sentence does not display

14
15

judicial bias as petitioner asserts. During sentencing, the trial judge provided an extensive

16

explanation— that separate violent acts supported each conviction—for his decision to sentence

17

petitioner consecutively. Lod. Doc. 12 at 3074-76, 3098-3109, 3117-3126. Nothing in the record

18

indicates that the trial court acted with undue bias in rendering this sentencing decision.

19

Accordingly, petitioner’s argument is not well taken.

20

g. Appointed Conflicted Attorney to Represent Petitioner’s Brother and

21

Petitioner’s Brother’s Girlfriend

22

Finally, petitioner asserts that the trial court violated his Sixth Amendment right to

23

counsel by appointing an attorney, John Lawrence, to represent petitioner’s brother, John Anon,

24

and petitioner’s brother’s girlfriend, Amanda Moro, who had a conflict due to his “familiarity”

25

with the prosecutor. ECF No. 12 at 60-61. Petitioner argues that this familiarity caused

26

11

27
28

In an apparent acknowledgement of this fact, petitioner states in his traverse that he “digresses
on the issue” after having reviewed the case law respondent cites to in her answer. ECF No. 46 at
47. The court construes this response as an acknowledgement by petitioner that his claim is based
entirely on state law and, therefore, is not cognizable under § 2254.
40

1

Lawrence to coerce Anon and Moro to refuse to testify on petitioner’s behalf. This argument is

2

not well taken for two reasons.

3

First, petitioner cites to a series of email communications between Lawrence and the

4

prosecutor attached to his operative first amended petition in support of his argument that in no

5

way show that Mr. Lawrence had a “conflict” that would have caused him to improperly coerce

6

Anon or Moro into not testifying on petitioner’s behalf. See ECF No. 12 at 116-26. Indeed, the

7

email chain attached to the petition consists merely of a conversation between Lawrence and the

8

prosecutor arranging for the prosecutor to meet with Ruth Kellner, another witness in the case

9

represented by Mr. Lawrence. Id. Moreover, the record shows that Moro was not represented by

10

Lawrence, but by another appointed attorney, William Duncan, and remained ready and willing to

11

testify on petitioner’s behalf throughout the trial on the condition that she be granted testimonial

12

immunity. Lod. Doc. 12 at 1515, 1524-27, 1531-33. With regard to Anon, the prosecution

13

attempted to call him as a witness against petitioner, but he invoked his Fifth Amendment right

14

against self-incrimination. Id. at 1517-22, 1528-30, 1537-50. Later, the defense stated its intent

15

to have Anon to testify, but the prosecution objected and stated its intent to impeach Anon if he

16

testified. Lod Doc. 11 at 505-13. Ultimately, the defense rested without calling Anon. Lod Doc.

17

12 at 2845. Nothing in the record remotely suggests that Lawrence conspired with the prosecutor

18

to coerce Anon and Moro into not testifying. Moreover, nothing suggests that the trial court acted

19

with undue bias towards petitioner in appointing Lawrence to represent Anon and other

20

prospective witnesses.

21

Second, and more importantly, petitioner fails to point to any clearly established Supreme

22

Court precedent indicating that a court’s appointment of a conflicted attorney to represent

23

prospective defense witnesses violates a criminal defendant’s Sixth Amendment right to counsel.

24

Indeed, petitioner himself appears to concede in his traverse that no such precedent exists. ECF

25

No. 46 at 47. Because there is no clearly established Supreme Court precedent to support his

26

claim that his Sixth Amendment right to counsel was violated, petitioner’s argument is without

27

merit.

28

////
41

1
2

In sum, petitioner’s judicial bias claims are both procedurally defaulted and lack merit.
Therefore, they are denied.

3

C. Ineffective Assistance of Appellate Counsel

4

Third, petitioner contends that the appellate counsel that represented him on direct appeal

5

in the California Court of Appeal, Third Appellate District and California Supreme Court was

6

ineffective because he failed to raise the prosecutorial misconduct and judicial bias claims

7

petitioner presents above.

8

1.

Legal Standards

9

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

10

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

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

1984) (per curiam).

22
23
24
25
26
27
28

As to ineffective assistance claims in the federal habeas context, the Supreme
Court has instructed:
Establishing that a state court’s application of Strickland was
unreasonable under § 2254(d) is all the more difficult. The
standards created by Strickland and § 2254(d) are both “highly
deferential,” id., at 689; Lindh v. Murphy, 521 U.S. 320, 333, n. 7,
(1997), and when the two apply in tandem, review is “doubly” so,
Knowles, 556 U.S., at ----, 129 S. Ct. at 1420. The Strickland
standard is a general one, so the range of reasonable applications is
substantial. 556 U.S., at ----, 129 S. Ct. at 1420. Federal habeas
courts must guard against the danger of equating unreasonableness
42

1

under Strickland with unreasonableness under § 2254(d). When §
2254(d) applies, the question is not whether counsel’s actions were
reasonable. The question is whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.

2
3
4

Harrington v. Richter, 131 S. Ct. 770, 787-788 (2011) (parallel citations omitted).
2.

5

Discussion

With regard to petitioner’s claim that his appellate counsel acted deficiently by not raising

6
7

the prosecutorial misconduct and judicial bias claims he asserts above, the court notes that those

8

claims lack merit for the reasons discussed above. Defense counsel has no constitutional

9

obligation to raise every frivolous, or even non-frivolous, issue requested by the defendant. Jones

10

v. Barnes, 463 U.S. 745, 751-54 (1983). Moreover, as the Ninth Circuit Court of Appeals has

11

noted, “[i]n many instances, appellate counsel will fail to raise an issue because she foresees little

12

or no likelihood of success on that issue; indeed, the weeding out of weaker issues is widely

13

recognized as one of the hallmarks of effective appellate advocacy.” Miller v. Keeney, 882 F.2d

14

1428, 1434 (9th Cir. 1989). As discussed above with regard to petitioner’s prosecutorial

15

misconduct claims, the petition here shows that plaintiff wrote to his appellate counsel requesting

16

his counsel to raise some of the prosecutorial misconduct and judicial claims he currently asserts,

17

to which his counsel responded that he would not raise such claims as he had conducted research

18

regarding their viability and determined that they would have little likelihood of success. ECF

19

No. 12 at 149-53. Accordingly, the mere fact that petitioner’s appellate counsel declined to raise

20

the non-meritorious claims petitioner asserts above does not establish that his counsel was

21

ineffective. See id. Furthermore, because petitioner’s multitude of prosecutorial misconduct and

22

judicial bias claims are without merit, petitioner cannot show that he suffered prejudice as a result

23

of his appellate counsel’s refusal to raise those claims on direct appeal. Because petitioner cannot

24

demonstrate that his appellate counsel’s actions were constitutionally deficient and show that

25

those actions were prejudicial, petitioner’s ineffective assistance of appellate counsel claim is

26

denied.

27

////

28

////
43

1

D. Failure to Give Calcrim 350 Jury Instruction

2

Fourth, petitioner argues that the state trial court improperly refused to instruct the jury

3

using Calcrim 350, which instructs on how a jury is to consider evidence of a criminal

4

defendant’s good character, in violation of petitioner’s Fourteenth Amendment rights to due

5

process and equal protection.

6

1. State Court Decision

7
8

The California Court of Appeal, Third Appellate District summarized the facts underlying
this claim and ruled as follows:

9

In the course of settling instructions, defendant asserted that he was
entitled to an instruction on evidence of his good character. When
asked for the evidentiary basis for the instruction, defense counsel
replied, “I believe there’s been testimony by [defendant’s
stepgrandfather]. There was various witnesses talking about . . .
them being a happy, loving couple,” otherwise specifying, however,
only an ex-girlfriend who testified that defendant “was a good guy.”
The trial court found this testimony did not “ris[e] to the level of a
character trait that is normally encompassed by” the instruction.
(CALCRIM No. 350.)

10
11
12
13
14
15

In the referenced testimony,12 the stepgrandfather described
defendant and the victim as being affectionate with one another
while they stayed a couple of days with him in Las Vegas in the
spring of 2009. An ex-girlfriend of defendant’s had testified
(pursuant to Evid. Code, § 1109) that defendant had hit her in the
mouth in 1997 in Dunsmuir when she was eight months pregnant
with their child (for which he later pleaded guilty to a felony).13
However, she also testified as a defense witness, asserting that she
did not have any continuing fear of defendant, and made him the
godfather of her child with an unnamed brother of defendant’s.

16
17
18
19
20
21
22

A. State Law
23
24
25
26
27
28

12

On appeal, defendant does not attempt to identify any other testimony in this vein. We note,
however, defendant’s natural father similarly described the couple’s behavior as affectionate
during the visit to him in Missouri.
13

A second ex-girlfriend also testified (pursuant to Evid. Code, § 1109) that defendant had struck
her two to three times on her back with a belt in 2002 during the course of an argument, after
which she engaged in multiple acts of sexual intercourse with him (though later reporting the
incident to the police).
44

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23

As People v. Bell (1875) 49 Cal. 485 (Bell ) observed, “It is
important in every criminal case, and especially so when the
inculpatory proof is circumstantial in its character, that the jury
should be instructed, if the prisoner so request, that in determining
whether or not he is guilty beyond a reasonable doubt, his good
reputation, if he have such, as to traits involved in the charge,
should be weighed as any other fact established, and that it may be
sufficient to create a reasonable doubt as to his guilt. Whether or
not, in the particular case in hand, it would do so, was a question for
the consideration of the jury . . . . [T]here may be cases so made out
that no character, however high, can make them doubtful, while
there may be other cases in which a high character would produce a
reasonable doubt, when without it, the evidence [otherwise] might
be considered as establishing guilt beyond a reasonable doubt.”
(Bell, at p. 490; accord, People v. Jones (1954) 42 Cal.2d 219, 224
(Jones ).)
Generally, a defendant may present evidence of character in the
form of opinion or reputation evidence, but not in the form of
specific acts. (Jones, supra, 42 Cal.2d at p. 224; People v. Felix
(1999) 70 Cal.App.4th 426, 431-432; People v. Honig (1996) 48
Cal.App.4th 289, 348; Evid. Code, § 1102.) However, People v.
Callahan (1999) 74 Cal.App.4th 356, 379 (Callahan), held that
where the prosecution has introduced propensity evidence in the
form of uncharged specific criminal sexual acts (Evid. Code, §
1108), a defendant was entitled in rebuttal to introduce any “of the
three types of character evidence—opinion evidence, reputation
evidence, and evidence of specific incidents of conduct.” (Italics
added.)
From this defendant argues the proposition that, in light of the
prosecution’s introduction of the evidence of the two acts of
uncharged domestic violence (Evid. Code, § 1109), the testimony
regarding specific instances of his kindly behavior with the victim
became admissible as rebuttal good character evidence. These
specific instances, in turn, were substantial evidence in support of
the requested pattern instruction (which flows from Bell) that
directs a jury to take this evidence into account in deciding the issue
of reasonable doubt.

24
25
26
27
28

The People, after we directed them to respond to this issue in
supplemental briefing, assert Callahan involved admission of the
evidence rather than determining whether the evidence was
sufficient to warrant instruction on reasonable doubt from good
character evidence. It is true Callahan does not directly make any
reference to the latter; however, we believe it is necessarily implicit
within Callahan’s discussion of admissibility that the excluded
45

1
2
3
4
5
6
7
8

evidence (asking the niece of a defendant charged with molesting
another whether he had ever touched her inappropriately) would
have warranted an instruction on the effect of the evidence.
Otherwise, there would not have been any purpose in reaching the
issue. The People also argue in conclusory fashion that the
testimony of the stepgrandfather and ex-girlfriend “shed little if any
light on [defendant’s] proclivity for beating women.” This may be
true of the stepgrandfather’s two-day contact, but does not apply to
the father’s observations over a period of several weeks, or the exgirlfriend’s present comfort level despite past physical abuse.
Tautologically, specific acts are specific acts, not reputation or
opinion. The People in point of fact are disputing the weight we
should accord this evidence, not its sufficiency to support an
instruction.

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Ultimately, however, while we agree with the logic of defendant’s
proposition, we do not find the refusal of the instruction to be
prejudicial. The present case is certainly not among those where
“the inculpatory proof is circumstantial in its character,” and is one
of those “cases so made out that no character, however high, can
make them doubtful.” (Bell, supra, 49 Cal. at p. 490.) The late
Justice Jefferson (an authority on evidence) has described even the
more pervasive good character evidence of reputation or opinion as
having only “slight” probative value “at best.” (People v. Pic 'll
(1981) 114 Cal.App.3d 824, 892, reversed on different grounds in
People v. Pic'l (1982) 31 Cal.3d 731, 734-735.) The mere incidents
of good character in the present case were from two witnesses who
had at best only limited opportunities to observe defendant’s overall
behavior with the victim, and a third who was the mother of
defendant’s brother’s child. The victim’s testimony provided direct
evidence of guilt if credited. A physician testified that the victim
had injuries that corroborated her account of at least the attack at
the campground. Evidence of third party involvement was weak.
We are convinced a more favorable result would not be reasonably
probable if a jury were instructed to consider the specific instances
of good character on the question of reasonable doubt about the
victim’s credibility.
B. Federal Law
Defendant contends that deprivation of his entitlement to an
instruction on good character and reasonable doubt under Bell
violated his federal right to due process, relying on Hicks v.
Oklahoma (1980) 447 U.S. 343. However, as People v. Breverman
(1998) 19 Cal.4th 142, 170-172, explained at length, the erroneous
refusal to give an instruction on a lesser included offense to which a
defendant might be entitled under state law merely implicates the
factfinding process and therefore does not deprive a defendant of
46

1
2
3

any liberty interest as in Hicks (which involved the deprivation of a
procedural sentencing right). What is true of an instruction
regarding a lesser included offense is true of a pinpoint instruction
linking evidence of good character with the burden of reasonable
doubt.

4
5
6
7
8
9
10
11
12
13
14
15

Alternately, defendant argues a violation of his right to equal
protection as compared with “defendants in other cases, where
courts have held that [those] defendants [were] entitled to [the] jury
instruction . . . .” At our direction, the People responded on the
merits of this claim, invoking Beck v. Washington (1962) 369 U.S.
541 [8 L.Ed.2d 98]. The cited pages lay to rest defendant’s attempt
to assert a violation of equal protection. Responding to the
litigant’s claim that the failure to provide certain state procedural
protections against a biased grand jury unconstitutionally
discriminated against him, the United States Supreme Court tersely
observed in Beck, “the petitioner’s argument here comes down to a
contention that Washington law was misapplied. Such
misapplication cannot be shown to be an invidious discrimination.
We have said time and again that the Fourteenth Amendment does
not ‘assure uniformity of judicial decisions . . . [or] immunity from
judicial error . . . .’ [Citation.] Were it otherwise, every alleged
misapplication of state law would constitute a federal constitutional
question.” (Beck, at pp. 554-555 [8 L.Ed.2d at p. 110].) Defendant
similarly cannot transform what may have been instructional error
into error of constitutional magnitude.

16
17
18
19

Lod. Doc. 5 at 12-18.
2. Legal Standards
A challenge to jury instructions does not generally state a federal constitutional claim.

20

See Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107,

21

119 (1982)); Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983). Habeas corpus is

22

unavailable for alleged error in the interpretation or application of state law. Middleton, 768 F.2d

23

at 1085; see also Hayes v. Woodford, 301 F.3d 1054, 1086 (9th Cir. 2002); Lincoln v. Sunn, 807

24

F.2d 805, 814 (9th Cir. 1987). However, a “claim of error based upon a right not specifically

25

guaranteed by the Constitution may nonetheless form a ground for federal habeas corpus relief

26

where its impact so infects the entire trial that the resulting conviction violates the defendant’s

27

right to due process.” Hines v. Enomoto, 658 F.2d 667, 672 (9th Cir. 1981) (citing Quigg v.

28

Crist, 616 F.2d 1107 (9th Cir. 1980)); see also Prantil v. California, 843 F.2d 314, 317 (9th Cir.
47

1

1988) (stating that to prevail on such a claim petitioner must demonstrate that an erroneous

2

instruction “so infected the entire trial that the resulting conviction violates due process.”). The

3

analysis for determining whether a trial is “so infected with unfairness” as to rise to the level of a

4

due process violation is similar to the analysis used in determining whether an error had “a

5

substantial and injurious effect” on the outcome of the trial. See McKinney v. Rees, 993 F.2d

6

1378, 1385 (9th Cir. 1993).
In order to warrant federal habeas relief, a challenged jury instruction “cannot be merely

7
8

‘undesirable, erroneous, or even universally condemned,’ but must violate some due process right

9

guaranteed by the fourteenth amendment.” Prantil, 843 F.2d at 317 (quoting Cupp v. Naughten,

10

414 U.S. 141, 146 (1973)). In making its determination, this court must evaluate the challenged

11

jury instructions “‘in the context of the overall charge to the jury as a component of the entire trial

12

process.’” Prantil, 843 F.2d at 817 (quoting Bashor v. Risley, 730 F.2d 1228, 1239 (9th Cir.

13

1984)). The Supreme Court has cautioned that “not every ambiguity, inconsistency, or deficiency

14

in a jury instruction rises to the level of a due process violation.” Middleton v. McNeil, 541 U.S.

15

433, 437 (2004). Furthermore, in reviewing a challenged instruction, the court “must inquire

16

‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a

17

way’ that violates the Constitution.” Estelle, 502 U.S. at 72 (quoting Boyde v. California, 494

18

U.S. 370, 380 (1990)); see also United States v. Smith, 520 F.3d 1097, 1102 (9th Cir. 2008).

19

3. Discussion
As an initial matter, the court notes that petitioner argues that the court’s refusal to instruct

20
21

the jury on Calcrim 350 violated California state law. A violation, misapplication, or

22

misinterpretation of state law, without more, cannot provide a basis for habeas relief under §

23

2254. Estelle, 502 U.S. at 67-68; see also Middleton, 768 F.2d at 1085; Hayes, 301 F.3d at 1086;

24

Lincoln, 807 F.2d at 814. Accordingly, to the extent petitioner’s claim is premised on his

25

argument that the trial court violated state law by not instructing the jury using Calcrim 350, it is

26

denied.

27

Petitioner also argues that the trial court’s refusal to instruct the jury using Calcrim 350

28

violated the clearly established federal rule set forth by the Supreme Court’s ruling in Hicks v.
48

1

Oklahoma, 477 U.S. 343 (1980). In Hicks, the Court held that a state statute requiring sentencing

2

by jury, and providing the jury with sentencing discretion, created a liberty interest protected by

3

the Due Process Clause. Id. at 346. It further held that the petitioner in that case was denied his

4

due process right to discretionary jury sentencing when the trial judge instructed the jury that it

5

must impose a 40 year sentence pursuant to a recidivist statute that was declared unconstitutional

6

during the pendency of petitioner’s direct appeal, and the appellate court did not remand for

7

resentencing. Id. at 347.

8

Here, petitioner identifies no Supreme Court precedent that specifies or even considers the

9

issue of whether a court’s failure to provide an instruction on good character to which a defendant

10

might be entitled under state law under circumstances similar to those presented here violates the

11

Due Process Clause. Nor has petitioner identified any clearly established federal law that applies

12

Hicks to an analogous situation. While the Supreme Court “has held that such testimony alone, in

13

some circumstances, may be enough to raise a reasonable doubt of guilt and that in the federal

14

courts a jury in a proper case should be so instructed,” Michelson v. United States, 335 U.S. 469,

15

476 (1948) (citing Edgington v. United States, 164 U.S. 361 (1896) (emphasis added), it has not

16

mandated that such a jury instruction be given in order to protect a defendant’s due process rights,

17

nor has it even indicated that state courts should provide such an instruction under certain

18

circumstances. The state appeals court here distinguished the Supreme Court’s holding in Hicks

19

from the circumstances presented in petitioner’s case on the basis that the trial court’s refusal to

20

provide the good character instruction merely implicated the fact-finding process and therefore

21

did not deprive petitioner of any liberty interest as in Hicks. Lod. Doc. 5 at 16-17. In light of the

22

lack of clearly established Supreme Court precedent on this subject, it cannot be said that the state

23

appellate court’s ruling was an unreasonable application of Hicks or other clearly established

24

federal law. See Carey v. Musladin, 549 U.S. 70, 77 (2006) (“Given the lack of holdings from

25

this Court …, it cannot be said that the state court ‘unreasonbl[y[ appli[ed] clearly established

26

Federal law.”).

27
28

Moreover, as the state appeals court noted in its decision, “[t]he mere incidents of good
character in the present case were from two witnesses who had at best only limited opportunities
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to observe defendant’s overall behavior with the victim, and a third who was the mother of

2

defendant’s brother’s child.” Lod. Doc. 5 at 16. In contrast, “[t]he victim’s testimony provided

3

direct evidence of guilt if credited,” and a physician’s testimony regarding the nature of the

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victim’s injuries corroborated her account of at least the attack at the campground. Lod. Doc. 5 at

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16 (emphasis in original.) Furthermore, the trial court instructed the jury on petitioner’s

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presumption of innocence, the prosecution’s burden of proof beyond a reasonable doubt, and the

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insufficiency of bad character evidence standing alone to prove guilt. Lod. Doc. 11 at 546, 569-

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70. In light of the strong evidence indicating petitioner’s guilt, the weak evidence of good

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character presented by the defense at trial, and the instructions given to the jury, it is not

10

reasonably probable that the omission of Calcrim 350 from the trial court’s instructions to the jury

11

had a “substantial and injurious effect or influence in the determining the jury’s verdict.” Brecht

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v. Abrahamson, 507 U.S. 619, 637 (1993).

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Petitioner also argues that the trial court’s failure to provide the instruction violated the

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Equal Protection Clause of the Fourteenth Amendment. As the state appeals court discussed,

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petitioner’s argument on this basis is essentially an assertion that he was singled out by being

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denied a procedural safeguard afforded under California state law, i.e., a jury instruction

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regarding the use of evidence of good character. Such misapplication cannot be shown to be an

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invidious discrimination. The Supreme Court has held “time and again that the Fourteenth

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Amendment does not ‘assure uniformity judicial decisions (or) immunity from judicial error . . . .

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Were it otherwise, every alleged misapplication of state law would constitute a federal

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constitutional question.” Beck v. Washington, 369 U.S. 541, 554-55 (1962) (citation omitted).

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Here, the state appeals court reasonably applied this clearly established precedent to deny

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petitioner’s equal protection claim. Lod. Doc. 5 at 18. Accordingly, petitioner’s request for

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habeas relief on this basis is denied.

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E. Admission of Hearsay Evidence

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Fifth, petitioner argues that the trial court erroneously admitted evidence of a recorded

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phone call between the victim and petitioner’s brother, John Anon, as statements against penal

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interest pursuant to California Evidence Code section 1230. Petitioner argues that the admitted
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statements from this phone conversation were inadmissible hearsay because they did not

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specifically disserve Anon’s penal interest and there was insufficient evidence of their reliability.

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Absent some federal constitutional violation, a violation of state law does not provide a

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basis for habeas relief. Estelle, 502 U.S. at 67-68. Accordingly, federal court may not grant

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habeas relief based on a belief that the state trial court made an incorrect evidentiary ruling under

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state evidence law. Briceno v. Scribner, 555 F.3d 1069, 1077 (9th Cir. 2009) (citing Estelle, 502

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U.S. at 67-68) (“Our habeas powers do not allow us to vacate a conviction ‘based on a belief that

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the trial judge incorrectly interpreted the California Evidence Code in ruling’ on the admissibility

9

of evidence.”). Because petitioner bases his claim regarding this evidence solely on the assertion

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that the trial court erroneously applied California Evidence Code section 1230, petitioner fails to

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assert a cognizable claim for habeas relief pursuant to § 2254. Therefore, his claim is denied.

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F. Failure to Grant Use Immunity

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Sixth, petitioner argues that his right to due process was violated when the state trial court

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refused to grant testimonial use immunity to prospective defense witness Amanda Moro, the

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girlfriend of petitioner’s brother, who plaintiff claims would have testified that she did not

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observe petitioner assault the victim while they were all traveling from Placer County to Siskiyou

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County and did not believe that the victim was held against her will at that time.

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1. State Court Decision

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The California Court of Appeal, Third Appellate District summarized the facts underlying
this claim and ruled as follows:

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During trial, defense counsel challenged the prosecution’s
willingness to grant use immunity to the victim but not to the
girlfriend of defendant’s brother. In his motion, defense counsel
represented that the brother’s girlfriend could provide evidence
contradicting the victim,14 but would assert her privilege against
self-incrimination if called to testify. Defense counsel contended
the court should grant judicial use immunity over the prosecutor’s
objection (the prosecutor being unwilling to allow the brother’s
girlfriend to escape potential liability as an accomplice).

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Defense counsel attached his investigator’s report to the motion, which related an interview
with the girlfriend. In essence, the girlfriend claimed she did not observe physical abuse. The
parties stipulated to use of the report as an offer of proof.
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The court held a foundational hearing to determine the extent to
which the brother’s girlfriend would testify in the absence of a grant
of immunity. In the brief examination that the prosecutor
conducted before the court recessed for the weekend, the girlfriend
refused to answer questions about her own drug use during the
period in question or defendant’s use of drugs.

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3
4
5

When the hearing continued, the parties debated whether the
witness was entitled to assert the privilege. The attorney appointed
for the brother’s girlfriend suggested the prosecutor ought to be
able to tailor the cross-examination to avoid any admission on the
part of the witness about her own drug use or drug use in her car.
However, the prosecutor insisted these subjects were essential to
effective cross-examination. Appointed counsel agreed that the
girlfriend’s own drug use was inexorably entwined with her
observations during the time she spent with defendant and the
victim. Defense counsel conceded this was a legitimate basis to
assert the privilege. The prosecutor represented that she would
move to strike direct testimony if there was an assertion of privilege
in cross-examination.

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Determining that the parties were in agreement that the witness
would thus be unavailable absent a judicial grant of use immunity,
the court entertained argument before deciding (under criteria
hypothetically developed for the application of judicially granted
use immunity) that the girlfriend’s proposed testimony was not
clearly exculpatory or essential to the defense, and that the
girlfriend’s possible role as an accomplice presented a strong
countervailing interest on the part of the prosecution against a grant
of immunity. The court declined to find that the prosecutor was
attempting to distort the factfinding process in refusing to grant
immunity to her.

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Defendant renews the issue on appeal. He contends the trial court
abused its discretion in evaluating the factors set forth in People v.
Hunter (1989) 49 Cal.3d 957, 974 (citing from Government of
Virgin Islands v. Smith (3d Cir.1980) 615 F.2d 964, 972) as
applying if a court has the power to grant use immunity over a
prosecutor’s objections. Defendant admits that our Supreme Court
has consistently avoided the question of whether a court has power
to grant use immunity to implement a defendant’s right to due
process under federal or state law, and that the theory has fallen on
stony jurisprudential ground other than in Smith.15 He nonetheless
asks us to engage in the academic exercise of determining if the

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E.g., People v. Stewart (2004) 33 Cal.4th 425, 468 (and state cases cited therein); see United
States v. Santini (3d Cir.1992) 963 F.2d 585, 598, footnote 6 (listing uniform rejection of
judicially granted use immunity in decisions of the other federal circuits).
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trial court properly resolved the criteria for this presently
nonexistent right.
Defendant has made his record in the trial court and preserved the
issue on appeal. We reject his argument on the simple ground that,
absent a ruling to this effect from the Supreme Court, defendant
does not have any such right presently under any controlling state
or federal authority. Defendant may now press the issue in the
proper forum.
(Lod. Doc. 5 at 18-20.)
2. Discussion
As the state appeals court determined, and respondent persuasively argues, there exists no

10

federal authority, let alone clearly established Supreme Court precedent, requiring, or even

11

permitting, a trial court to grant use immunity to a prospective defense witness when the

12

prosecution has refused to immunize the witness, even when the prospective witness will likely

13

provide testimonial evidence that is beneficial or even essential to the defense’s case. Indeed, the

14

Supreme Court has not yet issued an opinion holding that a trial court is even permitted to grant

15

use immunity to a prospective defense witness over the prosecution’s objections, let alone

16

requiring a court to grant such immunity under the circumstances petitioner asserts. See United

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States v. Quinn, 728 F.3d 243, 247 (3d Cir. 2013) (“No statute or Supreme Court ruling

18

authorizes judicial grants of immunity for a defense witness.”). Furthermore, virtually every

19

federal court of appeals that has addressed the issue, including the Ninth Circuit Court of

20

Appeals, has held that the trial court does not have the power to grant use immunity, nor does it

21

have the power to force the government to grant such immunity. E.g., U.S. v. Medina, 731 F.2d

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1412, 1414 (9th Cir. 1984) (“Lacking the authority to foreclose executive branch discretion in this

23

area, a district court has neither the power to grant use immunity to individuals whom the

24

defendant seeks to call as witnesses, nor the power to force the government to grant such

25

immunity.”); United States v. Capozzi, 883 F.2d 608, 614 (8th Cir. 1989); Mattheson v. King,

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751 F.2d 1432 (5th Cir.1985), cert. dismissed, 475 U.S. 1138 (1986); United States v. Hunter,

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672 F.2d 815, 818 (10th Cir. 1982); United States v. Turkish, 623 F.2d 769 (2d Cir.1980). But

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see Quinn, 728 F.3d at 247 (overturning own case law permitting a trial court to immunize a

2

defense witness under certain circumstances and joining the other circuits in rejecting judicial use

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immunity, but retaining five-part test that permits courts to determine whether the prosecution

4

engaged in misconduct by refusing to grant use immunity).

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Because there exists no clearly established Supreme Court precedent that required, or even

6

permitted, the trial court to grant Moro use immunity to compel her to testify in furtherance of

7

petitioner’s case at trial—and the lower court case law on the subject indicates that no such

8

authority exists—petitioner fails to show that the state court’s denial of his due process claim

9

based on such a theory was unreasonable within the meaning of § 2254. Accordingly, petitioner’s

10

claim is denied.

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G. Cumulative Error

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Finally, petitioner contends that all of the errors he alleges above cumulatively prejudiced

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him at trial to such a degree that he was denied a fair trial in violation of his right to due process.

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The Supreme Court has clearly established that the combined effect of multiple trial court

15

errors violates due process where it renders the resulting criminal trial fundamentally unfair.

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Chambers v. Mississippi, 410 U.S. 284, 302-03 (1973). Due process may be violated by the

17

cumulative effect of multiple errors even where no single error rises to the level of a

18

constitutional violation or would independently warrant reversal. Id. at 290, n.3. However, a

19

claim of cumulative error warrants habeas relief only where the errors have “so infected the trial

20

with unfairness as to make the resulting conviction a denial of due process.” Donnelly v.

21

DeChristoforo, 416 U.S. 637, 643 (1974). In other words, the combined effect of the errors must

22

have a “substantial and injurious effect or influence on the jury’s verdict.” Brecht v.

23

Abrahamson, 507 U.S. 619, 637 (1993) (internal quotations omitted).

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Here, petitioner fails to show that the rejection of this claim by the California Court of

25

Appeal, Third Appellate District and the California Supreme Court was contrary to the clearly

26

established Supreme Court precedent. While neither state appeals court explicitly addressed

27

petitioner’s cumulative error claim when he raised it on direct appeal, they both necessarily

28

rejected it by upholding the judgment. As discussed above, none of petitioner’s numerous claims
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have merit. Moreover, even when the conduct of the prosecution, trial court, witnesses, and jury

2

that forms the basis for petitioner’s claims is considered cumulatively, it cannot be reasonably

3

asserted that such conduct had a “substantial and injurious effect or influence on the jury’s

4

verdict” such that the verdict would have been different in the absence of all, or even some, of

5

that conduct. Brecht, 507 U.S. at 637; see also U.S. v. Rivera, 900 F.2d 1462, 1471 (9th Cir.

6

1990) (“[A] cumulative error analysis should evaluate only the effect of matters determined to be

7

errors, not the cumulative effect of non-errors.”). Accordingly, it was not unreasonable for the

8

state court to find that any of the conduct that forms the basis of petitioner’s claims, even when

9

considered in combination, did not so infect the trial with unfairness as to violate due process.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s petition for writ of habeas corpus is denied;

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2. This case is closed; and

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3. The court declines to issue the certificate of appealability referenced in 28 U.S.C. §

14

2253.

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Dated: September 7, 2016

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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