Simmons v. Johnson
Filing
22
MEMORANDUM DECISION signed by Senior Judge James K. Singleton on 12/8/2015 ORDERING that the Petition for Writ of Habeas Corpus is DENIED. The Court declines to issue a Certificate of Appealability. CASE CLOSED. (Zignago, K.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
CAROLYN SIMMONS,
No. 2:14-cv-00413-JKS
Petitioner,
MEMORANDUM DECISION
vs.
D. K. JOHNSON, Warden,
Central California Women’s Facility,
Respondent.
Carolyn Simmons, a state prisoner proceeding pro se, filed a Petition for a Writ of
Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Simmons is in the custody of the
California Department of Corrections and Rehabilitation and incarcerated at Central California
Women’s Facility. Respondent has answered, and Simmons has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
On July 9, 2009, Simmons was charged with the 1991 first-degree murder of Richard
Jackson. The information further alleged that the murder was committed during the commission
of a robbery. Simmons pleaded not guilty and denied the special circumstance. On direct appeal
of her conviction, the California Court of Appeal described the following events underlying the
charges against Simmons:
On June 16, 1991, Jackson made plans to have Father’s Day dinner with his close
friend Addie Hayes. Jackson lived alone in a small apartment on Clauss Court in South
Sacramento, on the periphery of Oak Park. Hayes lived a few blocks away. Because
Jackson was an alcoholic, Hayes was the payee for certain government benefits Jackson
received and made sure his rent and utilities were paid. Jackson called Hayes on a
nightly basis to inform her that he had made it home safely. Hayes also had a key to
Jackson’s apartment in case she needed to check on him. That afternoon, Jackson called
Hayes and told her that he might not come over for dinner and to save him a plate of food
for the next day. Hayes became worried when Jackson did not call to check in later that
night. The next morning, after a couple of unsuccessful attempts to reach him on the
phone, Hayes went to Jackson’s apartment and discovered his body on the couch.
. . . Jackson had been repeatedly hit in the head with a blunt object, “something
like a hammer,” and had “multiple deep lacerations of the right side of his head.” His
skull, cheekbones, and eye socket were fractured. Jackson also suffered blunt-force
injuries to the right side of his neck. His carotid artery was “torn almost completely
through,” his jugular vein was “torn completely,” and the right portion of his thyroid
gland was “crushed and torn.” Jackson did not have any defensive wounds on his body,
suggesting that the first blow “could have been an incapacitating blow, a blow to the side
of the head, possibly the one that caused the [skull] fracture.”
Hayes yelled for the apartment manager, who called the police. When Detective
Dick Woods arrived, he noted there were no signs of forced entry. Nor was any blood
found outside of the apartment. On the couch in the living room, Jackson’s body was
naked from the waist down and covered with a blanket. A nylon Brillo pad was placed in
his mouth. Blood covered Jackson’s head and neck, staining his previously white shirt.
A blood swipe was found on his left thigh and blood spatters were found on both legs
beneath the blanket. The blanket itself appeared free of blood. Blood spatters were also
found on three living room walls, the ceiling, and the coffee table. There was no sign of
blood in either the kitchen or bathroom. Based on the location of the blood and the
spatter patterns, Detective Woods concluded all of the blood came from Jackson and
declined to have any of it tested.
The overall appearance of the apartment was clean and orderly. There were no
signs of ransacking. Several items were on top of the coffee table, including an empty
bottle of Seagram’s Seven Crown whiskey, a jar of Vaseline, four prescription bottles
made out in Jackson’s name, and a cardboard Brillo pad wrapper that had been torn into
two pieces. Jackson’s pants were on the floor by the front door. Police searched the
pants and found a lighter, pocketknife, and soiled linen. They did not find a wallet,
money, driver’s license, or car keys either in the pants or anywhere else in the apartment.
The bedroom was also neat and clean, with the exception of the bed’s mattress being off
of the frame and pushed about a foot and a half toward the wall. A closet door in the
hallway was partially open. Inside the closet was an assortment of tools. Police found
nothing in or around the apartment they believed to be the murder weapon.
Jackson’s car was also missing. It was found in Oak Park the next morning,
illegally parked at the intersection of Martin Luther King Boulevard and 22nd Avenue.
The driver’s seat was positioned as close to the steering wheel as possible. Several
cigarette butts were in the ashtray, some of which were marked with lipstick. There did
not appear to be any blood in the vehicle.
Police processed both the apartment and vehicle for latent fingerprints and
interviewed several people in connection with the crime. [Simmons] became a suspect
after her fingerprint was found on the toilet seat in Jackson’s apartment and was brought
in for questioning. After additional fingerprints were matched to defendant, she was
again questioned by police.1 At the time, [Simmons] lived at her mother’s house on
Schreiner Street in South Sacramento. Police executed a search warrant at this location,
but found nothing tying [Simmons] to the crime. [Simmons’] son was present during the
2
search. The District Attorney determined there was insufficient evidence to prosecute
[Simmons] for the murder.
FN1. The People conceded these statements were taken in violation of
[Simmons’] rights under Miranda v. Arizona (1966) 384 U.S. 436, 479 [16
L.Ed.2d 694] and did not attempt to introduce them into evidence.
The case went cold for nearly 18 years.
On January 23, 2009, [Simmons’ son Anthony] Tyree walked into the police
station and told Detective Kyle Jasperson that his mother had confessed to committing a
murder. Tyree explained that on a Sunday morning the previous summer, [Simmons]
told him that she wanted to go to church but was not able to do so. Tyree suggested that
she go to church with her neighbors, Dan Elliott and his wife. [Simmons] then stated that
she was not allowed to go to their church because she had previously told their pastor,
who was also a police officer, that she was “involved in a homicide.”
After some coaxing, [Simmons] confessed certain details of the crime to her son.
Tyree explained that [Simmons], who was “a known prostitute,” told him that she was
hanging out in Oak Park when an “old dude” picked her up and offered her money to
come over to his house. [Simmons] agreed and accompanied the man to his house. But
when the man tried to postpone paying her the money he promised, [Simmons] became
angry and “picked up some type of object.” The man “took a drink or turned his head,”
at which point [Simmons] “hit him in the head really hard.” [Simmons] “took every dime
in his pocket and left,” taking the murder weapon with her. She then “went somewhere
and changed her clothes.”
[Simmons] also told her son that the crime occurred when they lived on Schreiner
Street. Tyree, who was 21 years old at the time, remembered the police searching the
house and bringing his mother in for questioning. He estimated the crime occurred
between 1988 and 1990, stating the crime could not have happened after he was arrested
in January 1991 and sent to prison. Detective Jasperson did not find a cold case
matching the description Tyree provided during the specified years. Jasperson then
checked Tyree’s criminal record and discovered that he was actually arrested in January
1992. Expanding the search to include 1991, Jasperson found that the Jackson murder
matched Tyree’s description.
The next month, Detective Jasperson contacted the bishop of the church attended
by the Elliotts between 2001 and 2004, Stephen Hinkson. Hinkson, who was also a
police officer, told Jasperson that a woman had come to the church “about eight years
ago” and stated that she was “involved” in a murder. When Jasperson showed Hinkson a
picture of [Simmons] from 2001, he could not positively identify her as the same person,
but stated that she was “the same race” and “about the right age.” At trial, Hinkson
testified that while the woman did not go into details, she did state that “it was a male
victim,” that “the cause of death may have been a blunt force trauma,” and that she felt
“responsible” for the man’s death. Hinkson told the woman that she would have to
reveal everything she knew about the murder to law enforcement before she could
become a member of the church.
3
On March 3, 2009, Detective Jasperson tried to contact [Simmons] at her
residence. Tyree answered the door. He told Jasperson that his mother was not home,
but that she had also confessed the murder to Rebecca Person, a close friend of the
family. At Jasperson’s request, Tyree went down to the police station and called Person
on the phone. During the phone call, which was recorded, Tyree asked Person whether
[Simmons] had told her that “she killed somebody” and then changed the story and said
that “she cleaned up the crime scene” after somebody else committed the crime. Person
responded: “Yeah, something like that. I don’t know. I don’t know what to believe.”
The next morning, Tyree called Detective Jasperson and said that his cousin,
Alicia Joseph, might have information about the murder. Jasperson then called Joseph on
the phone and told her that he was investigating an old homicide that potentially involved
[Simmons]. Joseph responded: “Well, I know that she confessed herself to me.” As
Joseph explained, [Simmons] stated that she went to an “older” man’s house, and when
he “made her mad,” she picked up an object and “hit him on top of his head, and she just
kept hitting him.” [Simmons] told Joseph that after she killed the man, she “cleaned
herself up, and she cleaned up as much as she could so she wouldn’t get caught.”
[Simmons] also told Joseph that she was questioned by police in connection with the
murder. Joseph believed [Simmons] confessed to her in order to “get it off her chest.”
On March 5, 2009, Detective Jasperson provided Tyree with a police “bait car,”
which was equipped with a hidden video camera and audio recorder. Tyree had
previously agreed to use the car to pick up [Simmons] and engage her in conversation
about the murder. When Jasperson spoke to Tyree after he dropped [Simmons] off,
Tyree stated that he asked his mother why she told Person about the murder. [Simmons]
responded that she “felt guilty about it.” For some reason, the car’s equipment failed to
record the conversation.
That night, Joseph called the police and reported that [Simmons] had assaulted
her with a deadly weapon. [Simmons] was arrested and taken to jail. She was not under
arrest for the murder.
On March 6, 2009, Detective Jasperson contacted Person at her home. After a
brief conversation in the kitchen, Person asked if they could talk somewhere else, and the
interview was moved to the police station. At the station, Person explained that an
emotional [Simmons] called her one night at around 10:30 p.m. and said: “I just can’t live
with myself, things that I’ve done in my life.” Person tried to console [Simmons] by
saying that God would forgive her for whatever she had done. [Simmons] responded: “I
killed somebody.” Person said that she did not want to discuss the matter over the phone
and agreed to meet [Simmons] at the Bonfare Market on Broadway.
At the market, [Simmons] told Person that two male drug dealers killed a man in
front of her and forced her to clean up the crime scene. According to [Simmons], one of
the drug dealers promised to give her “some dope” in exchange for helping him “get in
contact” with the man. She agreed. Pursuant to the plan, when [Simmons] went to the
man’s house, the drug dealers showed up and [Simmons] opened the door for them. The
drug dealers killed the man in front of her and demanded that she clean up the crime
scene. When she refused, one of the drug dealers pointed a gun at her head and forced
her to do so. After [Simmons] used ammonia and bleach to clean up the crime scene2, the
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drug dealers told her “you better keep your mouth shut” and dropped her off a couple
blocks from her mother’s house. [Simmons] also stated the fact that the drug dealers
needed to “go through her” to get in touch with Jackson should have tipped her off that
this “wasn’t a good situation.”
FN2. There was no evidence that any blood at the crime scene had been cleaned
up with ammonia or bleach.
As Detective Jasperson drove Person home following the interview, she told him
that she remembered the “street name” of one of the drug dealers [Simmons] claimed was
responsible for the murder, “Little Ray.” The next two days, Person twice visited
[Simmons] at the jail. During the first visit, Person told [Simmons] that she had spoken
to Jasperson about the murder and told him that two drug dealers had committed the
crime. [Simmons] responded: “You shouldn’t have even told him that.” Person also told
[Simmons] that she made up the name “Little Ray” because she felt pressured. During
the second visit, [Simmons] told Person that instead of two male drug dealers, two
women were actually responsible for the murder. After this visit, Person called Jasperson
and told him that [Simmons] had “changed her story,” and that “now there were two
females who were supposedly responsible or involved in this homicide.” Person stated
that this was the first time [Simmons] told her this version of the murder.
On April 8, 2009, Detective Jasperson went to Person’s house to follow up on her
conversations with [Simmons] at the jail. By this point, [Simmons] had been released
from jail and was at Person’s house. Jasperson spoke with Person alone in the driveway.
Person continued to assert that [Simmons] had told her that two male drug dealers
committed the murder and that “Little Ray” was the name of one of the drug dealers.
After obtaining permission to enter the house, Detective Jasperson spoke to
[Simmons] alone in one of the back rooms. [Simmons] admitted to being at Jackson’s
apartment the day he was killed, but claimed “there were two females who came walking
into the apartment as she was leaving.” [Simmons] denied that drug dealers were
involved. Jasperson then brought Person into the room and asked whether [Simmons]
had told her that two drug dealers had committed the murder. [Simmons] answered that
she never said that to Person. Person’s only response was that “she did not want to be
involved in this.” [Simmons] then repeatedly denied that drug dealers were involved in
the murder. She then revised her story about the two women who were purportedly
involved, and said that they were not walking into the apartment, but were instead
coming into the apartment complex as she left. [Simmons] provided no names for these
women.
. . . [A]side from [Simmons’] statements to Tyree, Joseph, Person, and Hinkson
concerning the murder, she left several fingerprints both in Jackson’s apartment and in
his vehicle. Two such prints were found on the Brillo pad wrapper on Jackson’s coffee
table.
People v. Simmons, No. C065601, 2012 WL 1715860, at *2-5 (Cal. Ct. App. May 16, 2012).
5
On February 10, 2010, Simmons proceeded to jury trial. On the twenty-second day of
trial, the jury found Simmons not guilty of first-degree murder, but guilty of the lesser-included
offense of second-degree murder. The trial court subsequently sentenced her to an indeterminate
term of 15 years to life imprisonment.
Through counsel, Simmons appealed her conviction, arguing that: 1) reversal was
required because Simmons’ right to a speedy trial was violated; 2) the trial court gave the jury an
improper charge on the natural and probable consequences doctrine; 3) the trial court violated
Simmons’ rights to due process and a fair trial in its response to a jury question; 4) the trial court
misinstructed the jury on voluntary intoxication; 5) the trial court violated Simmons’ rights to
due process, a fair trial, and to present a defense when it refused the defense request to re-open
closing arguments; 6) the court reporter erroneously read certain testimony to the deliberating
jury; 7) the court erroneously admitted evidence of Simmons’ other bad acts; 8) the cumulative
effect of the trial errors warranted reversal; and 9) the appellate court should strike the jail
booking and classification fees due to insufficient evidence of Simmons’ ability to pay. On May
16, 2012, the California Court of Appeal issued an unpublished, reasoned opinion rejecting all
the claims and affirming Simmons’ judgment in its entirety. Simmons, 2012 WL 1715860, at *1.
Counsel for Simmons petitioned the California Supreme Court for review, which was summarily
denied on August 15, 2012.
Simmons then filed a pro se petition for a writ of habeas corpus in the California
Supreme Court. She argued that: 1) she was denied her right to an impartial jury due to a juror’s
racial bias; 2) her appellate counsel was ineffective for failing to raise a number of meritorious
claims on direct appeal; 3) the trial court made a number of reversible errors; 4) the 18-year
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delay between the 1991 murder and her subsequent prosecution prejudiced her and damaged her
ability to mount a defense; 5) the cumulative effect of the errors warranted reversal; and 6) the
prosecution committed misconduct by presenting false evidence and perjured testimony. The
petition was denied without comment on January 1, 2014.
Simmons timely filed a pro se Petition for a Writ of Habeas Corpus to this Court on
January 31, 2014.
II. GROUNDS/CLAIMS
In her pro se Petition before this Court, Simmons raises six grounds for relief: 1) juror
bias; 2) ineffective assistance of appellate counsel; 3) multiple trial court errors; 4) speedy trial
violation; 5) cumulative error; and 6) prosecutorial misconduct.
III. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2254(d), this Court cannot grant relief unless the decision of the state court was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” § 2254(d)(1), or “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding,”
§ 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that
contradicts controlling Supreme Court authority or “if the state court confronts a set of facts that
are materially indistinguishable from a decision” of the Supreme Court, but nevertheless arrives
at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000).
The Supreme Court has explained that “clearly established Federal law” in § 2254(d)(1)
“refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the
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relevant state-court decision.” Id. at 412. The holding must also be intended to be binding upon
the states; that is, the decision must be based upon constitutional grounds, not on the supervisory
power of the Supreme Court over federal courts. Early v. Packer, 537 U.S. 3, 10 (2002). Where
holdings of the Supreme Court regarding the issue presented on habeas review are lacking, “it
cannot be said that the state court ‘unreasonabl[y] appli[ed] clearly established Federal law.’”
Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted).
To the extent that the Petition raises issues of the proper application of state law, they are
beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.
Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was
correctly applied). It is a fundamental precept of dual federalism that the states possess primary
authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62,
67-68 (1991) (a federal habeas court cannot reexamine a state court’s interpretation and
application of state law); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state
court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536
U.S. 584 (2002).
In applying these standards on habeas review, this Court reviews the “last reasoned
decision” by the state court. See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004)
(citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). Here, the only decision on
Simmons’ collateral review claims was a summary denial by the California Supreme Court on
habeas review, which is an adjudication on the merits and entitled to deference. Harrington v.
Richter, 562 U.S. 86, 99 (2011). Under the AEDPA, the state court’s findings of fact are
8
presumed to be correct unless the petitioner rebuts this presumption by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
IV. DISCUSSION
Ground One:
Juror Bias
Simmons first argues that her conviction should be reversed because one of the jurors
was racially biased against her. Simmons raised this claim in her state habeas petition to the
California Supreme Court, and presented in support of her claim an email written by a family
member of a sitting juror. The email stated that the sitting juror was motivated by racial animus,
felt negatively toward African Americans, and not only would vote for a guilty verdict regardless
of evidence but would encourage the other jurors to do the same. The supreme court summarily
denied the claim.
The Sixth Amendment guarantees criminal defendants the right to a “fair trial by a panel
of impartial, ‘indifferent’ jurors.” Irwin v. Dowd, 366 U.S. 717, 722 (1961); see Dyer v.
Calderon, 151 F.3d 970, 973 (9th Cir.1998). “Although doubts regarding bias must be resolved
against the juror, the defendants bear the burden of showing that the prospective juror was
actually biased, and that the [trial] court abused its discretion or committed manifest error when
it failed to excuse her for cause.” United States v. Maloney, 699 F.3d 1130, 1135 (9th Cir. 2012)
(internal citations, brackets, ellipses, and quotation marks omitted). “If only one juror is unduly
biased or prejudiced or improperly influenced, the criminal defendant is denied his Sixth
Amendment right to an impartial panel.” United States v. Hendrix, 549 F.2d 1225, 1227 (9th
Cir. 1997).
9
The United States Supreme Court has “long held that the remedy for allegations of juror
partiality is a hearing in which the defendant has the opportunity to prove actual bias.” Smith v.
Phillips, 455 U.S. 209, 215 (1982); Remmer v. United States, 347 U.S. 227, 228-29 (1954)
(remanding case to district court to “hold a hearing to determine whether the incident
complained of was harmful to the petitioner”). The record here reveals that the sitting juror was
informally questioned at the courthouse by the prosecutor and defense counsel, and the juror
denied having any animus or allowing any animus to affect him during deliberations.
While it may concern the Court that the parties’ inquiry and questioning of the sitting
juror was conducted informally and outside the presence of the trial judge, that fact does not
compel the conclusion that an adequate inquiry was not made. The United States Supreme Court
does not require the partiality hearing to be conducted in a specific manner. Smith, 455 U.S. at
217-18. The Ninth Circuit has applied the Smith hearing requirement to a variety of situations
and concluded that “[a]s long the fact-finding process is objective and reasonably explores the
issues presented, the state trial judge’s findings based on that investigation are entitled to a
presumption of correctness.” Hedlund v. Ryan, 750 F.3d 793, 807 (9th Cir. 2014) (citing Dyer,
151 F.3d at 974-75).
Here, the record indicates that, after the court received the email, it sent copies of the
letter to both the prosecutor and defense counsel. Although the author asked to remain
anonymous, it was agreed that both counsel could contact her for further information. The court
also sent a letter asking the sitting juror to appear in court on April 30, 2010. Investigators for
both the prosecution and the defense emailed the author and indicated that they needed to speak
with her as soon as possible. The author did not respond. She did, however, briefly respond to
10
an email sent by defense counsel and stated that it was all “a misunderstanding.” Defense
counsel again replied that she needed to speak with her, but counsel never heard back.
Investigators for the defense and prosecution also went together to the author’s home, but no one
answered the door after multiple knocks. Both investigators left their cards and requests for her
to contact them, but the author did not contact either investigator.
The sitting juror appeared in court as requested. The trial judge asked the prosecutor and
defense counsel to speak with him about the contents of the email. The prosecutor and defense
counsel spoke with the juror for roughly forty-five minutes to an hour outside the presence of the
trial judge. When given a copy of the email, the juror expressed confusion and denied having
any animus against Simmons or encouraging other jurors to convict her based on race. He stated
that the majority of the jurors were ready to convict Simmons of first-degree murder, but he
slowed things down and eventually got the jury to agree to a verdict of second-degree murder.
The juror also stated that the author was his daughter-in-law, with whom he did not have
a good relationship. He explained that his jury service had come up during a family function,
but the juror had told his family that he could not talk about the case because it was then
ongoing. The juror told counsel that he made no racial remarks during that time, and he was not
sure how the author would have known that the defendant was African-American as he did not
believe that he told his family members anything about the defendant. After finishing their
conversation, both counsel gave the juror their information in case he had follow-up information.
Later that afternoon, the juror called both counsel with information he had forgotten. The juror
stated that his sister had been called as a potential juror in the same case but that she was
dismissed due to a trip scheduled during trial. The juror indicated that the author may have
11
learned the defendant’s race from his sister. The juror also said that, during a custody battle over
his grandson, he wrote a letter in support of his son that attacked the author’s character. The
juror felt his role in the custody proceeding could be the reason for the author’s allegations.
The trial court subsequently held a status conference in which both attorneys appeared
and reported to the court their conversation with the sitting juror and their attempts to contact the
email’s author. After hearing the parties’ observations from that conversation and learning that
neither had been able to get further information from the author to substantiate the juror bias
claim, the trial judge denied Simmons’ motion for a new trial, stating:
The fact of the matter is if [racial bias] had occurred in this court, it was such an
affront so that any notion anyone might have of what is just and fair, it would be swiftly
dealt with. I am convinced and beyond satisfied that [defense counsel] and her defense
investigator have done everything they can to uncover competent evidence in that regard.
I have no competent evidence in front of me by way of affidavit, testimony or
anything else that would suggest that . . . [the] allegation is true. I have no basis to
believe that it is because I have no competent evidence before me. If any evidence
existed, I have no doubt it would have been presented to me at this time. There are no
affidavits. There are no declarations. There are no witnesses to testify.
The Court finds that the trial court’s handling of the allegations of juror bias and
Simmons’ motion for a new trial were reasonable and in accordance with clearly established
federal law. The trial court’s fact finding process was “objective and reasonably explored the
issues presented [and, therefore,] the state trial judge’s findings based on that investigation are
entitled to a presumption of correctness.” Hedlund, 750 F.3d at 807. It is unfortunate that the
trial judge was not able to question the sitting juror’s family member who made the accusation of
bias or question the juror’s impartiality directly so that the judge could observe the juror’s
demeanor and assess the juror’s credibility firsthand. Nevertheless, because there was no
competent evidence to demonstrate that the juror was in fact biased, the trial judge was not
12
required to do so. Simmons did not establish actual bias, that is “a state of mind that leads to an
inference that the person [did] not act with entire impartiality.” Olsen, 704 F.3d at 1189.
Because Simmons was given an opportunity to establish actual bias and the trial court’s factual
determinations were reasonable, the appellate court’s decision to deny Simmons’ claim was not
contrary to, and did not involve an unreasonable application of, clearly established federal law
and was not based on an unreasonable determination of fact. Importantly, there is no reason to
expect that an attorney appointed today would have more luck than Simmons’ trial counsel and
investigator in persuading the author of the e-mail to discuss the matter.1 Simmons is therefore
not entitled to relief on this ground.
Ground Two:
Ineffective Assistance of Appellate Counsel
Simmons next argues that her appellate counsel was ineffective for failing to raise on
appeal her claims that a juror was biased against her (Ground One) and the prosecutor committed
misconduct (Ground Six). Simmons raised this claim in her state habeas petition to the
California Supreme Court, which was summarily denied.
To demonstrate ineffective assistance of counsel under Strickland v. Washington, a
defendant must show both that his counsel’s performance was deficient and that the deficient
performance prejudiced his defense. 466 U.S. 668, 687 (1984). A deficient performance is one
in which “counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed by the Sixth Amendment.” Id.
1
Some judges faced with this record might have subpoenaed the family member
and brought her to court to testify under oath regarding her e-mail accusing the juror of bias.
Simmons’ attorney did not request a subpoena, however, no decision of the United States
Supreme Court requires a trial judge to sua sponte issue such a subpoena, and failure to do so
cannot be deemed “unreasonable.”
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The Supreme Court has explained that, if there is a reasonable probability that the
outcome might have been different as a result of a legal error, the defendant has established
prejudice and is entitled to relief. Lafler v. Cooper, 132 S. Ct. 1376, 1385-86 (2012); Glover v.
United States, 531 U.S. 198, 203-04 (2001); Williams, 529 U.S. at 393-95. Where a habeas
petition governed by AEDPA alleges ineffective assistance of counsel, the Strickland prejudice
standard is applied and federal courts do not engage in a separate analysis applying the Brecht
harmlessness standard. Avila v. Galaza, 297 F.3d 911, 918, n.7 (9th Cir. 2002); see also Musalin
v. Lamarque, 555 F.3d 830, 834 (9th Cir. 2009). Under this rubric, in reviewing ineffective
assistance of counsel claims in a federal habeas proceeding:
The question “is not whether a federal court believes the state court’s
determination” under the Strickland standard “was incorrect but whether that
determination was unreasonable—a substantially higher threshold.” And, because the
Strickland standard is a general standard, a state court has even more latitude to
reasonably determine that a defendant has not satisfied that standard.
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (citations omitted); see also Runningeagle v.
Ryan, 686 F.3d 758, 775 (9th Cir. 2012).
Thus, Simmons must show that her trial or appellate counsel’s representation was not
within the range of competence demanded of attorneys in criminal cases, and there is a
reasonable probability that, but for counsel’s ineffectiveness, the result would have been
different. See Hill v. Lockhart, 474 U.S. 52, 57 (1985). An ineffective assistance of counsel
claim should be denied if the petitioner fails to make a sufficient showing under either of the
Strickland prongs. See Strickland, 466 U.S. at 697 (courts may consider either prong of the test
first and need not address both prongs if the defendant fails on one).
14
As discussed with respect to Grounds One and Six in the instant Petition, however, those
underlying claims are without merit. Consequently, Simmons’ appellate counsel cannot be
ineffective for failing to raise them on appeal. See Lockhart v. Fretwell, 506 U.S. 364, 374
(1993) (O’Connor, J., concurring) (failing to raise a meritless objection cannot constitute
prejudice under a Strickland ineffective assistance of counsel claim); Jones v. Barnes, 463 U.S.
745, 751-52 (1983) (appellate counsel does not have an obligation to raise every nonfrivolous
argument); Turner v. Calderson, 281 F.3d 851, 872 (9th Cir. 2002) (“A failure to raise untenable
issues on appeal does not fall below the Strickland standard.”). Simmons thus cannot prevail on
this claim.
Ground Three:
Trial Court Errors
Simmons also claims that the trial court committed a number of reversible errors.
1.
Juror Bias
The juror bias claim raised in Ground Three alleges that same facts already addressed
with respect to Ground One. For the same reasons, Simmons cannot show that the trial court
erred in denying her new trial motion after finding no evidence of juror bias.
2.
Instructional Error
Simmons additionally contends that the trial court made a number of instructional errors
that warrant reversal of her conviction. Because jury instructions in state trial are typically
matters of state law, federal courts are bound by a state appellate court’s determination that a
jury instruction was not warranted under state law. See Bradshaw v. Richey, 546 U.S. 74, 76
(2005) (noting that the Supreme Court has repeatedly held that “a state court’s interpretation of
state law, including one announced on direct appeal of the challenged conviction, binds a federal
15
court sitting in habeas corpus.”); see also Williams v. Calderon, 52 F.3d 1465, 1480-81 (9th Cir.
1995). An instructional error, therefore, “does not alone raise a ground cognizable in a federal
habeas proceeding.” Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1986) (citation omitted).
A challenged instruction violates the federal constitution if there is a “reasonable
likelihood that the jury has applied the challenged instruction in a way that prevents the
consideration of constitutionally relevant evidence.” Boyde v. California, 494 U.S. 370, 380
(1990). The question is whether the instruction, when read in the context of the jury charges as a
whole, is sufficiently erroneous to violate the Fourteenth Amendment. Francis v. Franklin, 471
U.S. 307, 309 (1985). This Court must also assume in the absence of evidence to the contrary
that the jury followed those instructions. Weeks v. Angelone, 528 U.S. 225, 234 (2000);
Richardson v. Marsh, 481 U.S. 200, 206 (1987) (noting the “almost invariable assumption of the
law that jurors follow their instructions”); see Francis, 471 U.S. at 323-24 & n.9 (discussing the
subject in depth).
It is well-established that not only must the challenged instruction be erroneous but it
must violate some constitutional right, and it may not be judged in artificial isolation but must be
considered in the context of the instructions as a whole and the trial record. Estelle, 502 U.S. at
72. This Court must also bear in mind that the Supreme Court has admonished that the inquiry is
whether there is a reasonable likelihood that the jury applied the challenged instruction in a way
that violates the constitution and that the category of infractions that violate “fundamental
fairness” is very narrowly drawn. Id. at 72-73. “Beyond the specific guarantees enumerated in
the Bill of Rights, the Due Process clause has limited operation.” Id. Where the defect is the
failure to give an instruction, the burden is even heavier because an omitted or incomplete
16
instruction is less likely to be prejudicial than an instruction that misstates the law. See
Henderson v. Kibbe, 431 U.S. 145, 155 (1977). In those cases, the inquiry is whether the trial
court’s refusal to give the requested instruction “so infected the entire trial that the resulting
conviction violates due process.” See id. at 156-57; Estelle, 502 U.S. at 72. Moreover, even if
the trial court’s failure to give the instruction violated due process, habeas relief would still not
be available unless the error had a “substantial and injurious effect or influence in determining
the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); California v. Roy, 519
U.S. 2, 5 (1996).2
a.
Aiding and abetting
Simmons renews her argument made on direct appeal with respect to three aspects of the
aiding and abetting instructions given during trial: 1) insufficient evidence of aiding and abetting
assault for murder; 2) California’s merger doctrine prevented a theory of aiding and abetting
assault for murder; and 3) there was no target crime instruction.
Notably, Simmons herself, by telling stories to her son and friends, introduced scenarios
that implicated the aiding and abetting theory. After the close of evidence, the jurors were
presented with several possible scenarios, including: 1) Simmons engaged in an act of
prostitution with Jackson, became angry when he did not pay, struck him multiple times in the
head and took his money, keys, car, and the weapon; 2) Simmons drank or did drugs with
Jackson and then left on her own, upon which she saw two females enter Jackson’s apartment;
2
The Supreme Court recently clarified that Brecht incorporates the requirements of
§ 2254(d) (AEDPA). See Davis v. Ayala, 135 S. Ct. 2187, 2199 (2015). Thus, if a state court
has determined that a trial error was harmless, “a federal court may not award habeas relief
under § 2254(d) unless the harmlessness determination itself was unreasonable.” Id. (quoting
Fry v. Pliler, 551 U.S. 112, 119 (2007)) (emphasis in original).
17
and 3) Simmons went to Jackson’s apartment for the purpose of helping drug dealers enter his
apartment, who then killed Jackson and made her clean up the mess. The trial court instructed
the jury as to all three theories.
The Court of Appeal considered and adjudicated Simmons’ claim that the court
erroneously instructed the jury on the aiding and abetting theory as follows:
[Simmons] asserts a number of errors with respect to the jury instructions the trial
court provided describing the principle that a person who aids and abets a confederate in
the commission of a crime is liable not only for that crime, but also for any other crime
committed by the confederate that is a natural and probable consequence of the crime
originally aided and abetted. We find any instructional error to have been harmless.
A. Applicable Law
Under the “‘natural and probable consequences’ doctrine,” a person who aids and
abets a perpetrator in the commission of a crime is liable not only for that crime (the
target crime), but also for any other crime (nontarget crime) committed by the perpetrator
as a “natural and probable consequence” of the crime originally aided and abetted. To
convict a defendant of a nontarget crime as an accomplice under this doctrine, “the jury
must find that, with knowledge of the perpetrator’s unlawful purpose, and with the intent
of committing, encouraging, or facilitating the commission of the target crime, the
defendant aided, promoted, encouraged, or instigated the commission of the target crime.
The jury must also find that the defendant’s confederate committed an offense other than
the target crime, and that the nontarget offense perpetrated by the confederate was a
‘natural and probable consequence’ of the target crime that the defendant assisted or
encouraged.” (Ibid.) The trial court has a sua sponte duty to instruct the jury on the
natural and probable consequences doctrine “when the prosecution has elected to rely on
the ‘natural and probable consequences’ theory of accomplice liability and the trial court
has determined that the evidence will support instructions on that theory.” (Id. at p. 269.)
B. Additional Background
The jury was instructed with the standard CALCRIM instructions on aiding and
abetting (CALCRIM Nos. 400 and 401), including the natural and probable
consequences doctrine (CALCRIM No. 403). While the prosecution did not argue an
aiding and abetting theory to the jury, instead arguing that [Simmons] alone killed
Jackson after he tried to postpone paying her, the prosecution nevertheless asked the trial
court to provide these instructions because of [Simmons’] statements to Person that two
drug dealers committed the murder after she “set up” Jackson by letting them into his
apartment.
18
CALCRIM No. 400, as given to the jury, provided: “A person may be guilty of a
crime in two ways: One, she may have directly committed the crime. I will call that
person the perpetrator; two, she may have aided and abetted a perpetrator who directly
committed the crime. [¶] A person is guilty of the crime, whether she committed it
personally or aided and abetted the perpetrator who committed it. Under some specific
circumstances, if the evidence establishes aiding and abetting of one crime, a person may
also be found guilty of other crimes that occurred during the commission of the first
crime.”
CALCRIM No. 401, as given to the jury, provided in relevant part: “To prove that
the Defendant is guilty of a crime based on aiding and abetting that crime, the People
must prove that: [¶] The perpetrator committed the crime. [¶] The Defendant knew that
the perpetrator intended to commit the crime. [¶] Before or during the commission of the
crime the Defendant intended to aid and abet the perpetrator in committing the crime. [¶]
And the Defendant’s words or conduct did, in fact, aid and abet the perpetrator’s
commission of the crime. [¶] Someone aids and abets a crime if she knows of the
perpetrator’s unlawful purpose and he or she specifically intends to and does, in fact, aid,
facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime.”
CALCRIM No. 403, as given to the jury, provided: “Before you may decide
whether the Defendant is guilty of murder, you must decide whether she’s guilty of
assault with a deadly weapon, felony assault. To prove that the Defendant is guilty of
murder, the People must prove: [¶] That the Defendant is guilty of felony assault; during
the commission [of] a felony assault a co-participant in that felony assault committed the
crime of murder; and under all the circumstances, a reasonable person in the Defendant’s
position would have known that the commission of the murder was a natural and
probable consequence of the commission of the felony assault. [¶] A co-participant in a
crime is a perpetrator or anyone who aided and abetted the perpetrator. It does not
include a victim or innocent bystander. A natural and probable consequence is one that a
reasonable person would know is likely to happen if nothing unusual intervenes. [¶] In
deciding whether a consequence is natural and probable, consider all of the
circumstances established by the evidence. If the murder was committed for a reason
independent of the common plan to commit the felony assault, then the commission of
murder was not a natural and probable consequence of felony assault. [¶] To decide
whether the crime of murder was committed, please refer to the separate instructions that
I will give you on that crime.”
During deliberations, the jury sent the trial court the following question: “What
are the necessary criteria to be an accomplice to 2nd degree murder [?]” The trial court
responded by referring the jury back to CALCRIM Nos. 400, 401, and 403 on aiding and
abetting, and to CALJIC Nos. 8.30 and 8.31 defining second degree murder. The trial
court also explained in a special instruction: “Under the instructions you have already
been given, there are [two] theories under which a person can be guilty as [an] aider and
abettor. First, he or she can be guilty as an aider and abettor of a crime committed by
another if he or she aided and abetted the commission of the crime with the intent or
purpose of aiding and abetting that crime. In addition to being guilty of the intended
crime, if another crime is committed during the commission of the intended crime, a
19
person can be guilty of the other crime, if, under all of the circumstances, a reasonable
person in the defendant’s position would have know[n] that the commission of the other
crime was a natural and probable consequence of the commission of the intended crime.”
The same day the trial court provided this special instruction, the jury sent two
additional questions: “(1) What is the general definition of being an accomplice to 2nd
degree murder? [¶] (2) What are the requirements to qualify as an accomplice?” In
response to these questions, the trial court referred the jury back to CALCRIM No. 400
and provided two additional instructions, CALJIC Nos. 3.01 and 3.02.
CALJIC No. 3.01, as given to the jury, provided: “An accomplice is someone
who aids and abets the commission of a crime when she: [¶] (1) With knowledge of the
unlawful purpose of the perpetrator, and [¶] (2) With the intent or purpose of committing
or encouraging or facilitating the commission of the crime, and [¶] (3) By act or advice
aids, promotes, encourages or instigates the commission of the crime. [¶] A person who
aids and abets the commission of a crime need not be present at the scene of the crime.
[¶] Mere presence at the scene of a crime which does not assist the commission of the
crime does not amount to aiding and abetting. [¶] Mere knowledge that a crime is being
committed and the failure to prevent it does not amount to aiding and abetting.”
CALJIC No. 3.02, as given to the jury, provided: “One who aids and abets
another in the commission of a crime is not only guilty of that crime, but is also guilty of
any other crime committed by a principal which is a natural and probable consequence of
the crime originally aided and abetted. [¶] In order to find the defendant guilty of the
crime of murder as charged, or of any lesser offense, you must be satisfied beyond a
reasonable doubt that: [¶] 1. The crime of felony assault was committed; [¶] 2. That the
defendant aided and abetted that crime; [¶] 3. That a co-principal in that crime committed
the crime of felony assault; and [¶] 4. The crime of murder was a natural and probable
consequence of the commission of the crime of felony assault. [¶] In determining
whether a consequence is ‘natural and probable,’ you must apply an objective test, based
not on what the defendant actually intended, but on what a person of reasonable and
ordinary prudence would have expected likely to occur. The issue is to be decided in
light of all of the circumstances surrounding the incident. A ‘natural’ consequence is one
which is within the normal range of outcomes that may be reasonably expected to occur
if nothing unusual has intervened. ‘Probable’ means likely to happen.”
C. Analysis
1. Sufficiency of the Evidence
[Simmons] claims the trial court should not have given CALCRIM No. 403 or
CALJIC No. 3.02 because “there was no substantial evidence [she] intended to and did
commit an [assault with a deadly weapon], the target offense, or that she aided and
abetted the commission of an [assault with a deadly weapon] the [natural and probable
consequence] of which was murder.” We disagree.
According to Person’s statement to Detective Jasperson, [Simmons] told Person
that a drug dealer promised to give her “some dope” in exchange for helping him “get in
contact” with Jackson because he and Jackson “had something going on between each
20
other. You know, some kind of problems.” [Simmons] agreed. Pursuant to the
arrangement, she met with Jackson and went over to his apartment. When the drug
dealer arrived with another man, [Simmons] opened the door and let them into the
apartment. According to Person, defendant said the fact that the drug dealers needed to
“go through her” to get in touch with Jackson should have tipped her off that this “wasn’t
a good situation.” [Simmons] then explained that the drug dealers killed Jackson in front
of her and forced her to clean up the crime scene by holding a gun to her head.
If Person’s statement was believed, the jury could have found that [Simmons]
knew the drug dealers came to Jackson’s apartment to assault him and intended to
facilitate the commission of that crime by opening the door to let them into the
apartment. Knowledge and intent are “rarely susceptible of direct proof and generally
must be established by circumstantial evidence and the reasonable inferences to which it
gives rise.” The jury could have reasonably inferred [Simmons’] knowledge and intent
from the fact that she told Person the drug dealers had “some kind of problems” with
Jackson and needed to use defendant to gain access to his apartment. The jury could also
have found that one or both of the drug dealers defendant let into Jackson’s apartment not
only assaulted but also murdered Jackson. This is precisely what [Simmons] told Person.
The jury could reasonably have concluded that such a murder is a natural and probable
consequence of an assault by two drug dealers on an unsuspecting and partially nude
65–year–old man.
Nor is it important that there is no evidence [Simmons] specifically knew the drug
dealers were armed with a deadly weapon when she let them into the apartment. First, a
“deadly weapon” is “ ‘any object, instrument, or weapon which is used in such a manner
as to be capable of producing and likely to produce, death or great bodily injury.’ . . .
Some few objects, such as dirks and blackjacks, have been held to be deadly weapons as
a matter of law; the ordinary use for which they are designed establishes their character
as such . . . . Other objects, while not deadly per se, may be used, under certain
circumstances, in a manner likely to produce death or great bodily injury.” “Objects
which are not inherently dangerous but which have been found to be a deadly weapon
include ‘a pillow . . .; an automobile . . .; a large rock . . .; a razor blade . . .; [and] a
fingernail file.’ [Citation.] Even an apple may constitute a deadly weapon if it contains a
foreign object which is likely to produce great bodily injury when the apple is eaten.
[Citation.]” The question in this case is not whether [Simmons] knew the drug dealers
were armed with a deadly weapon when they entered the apartment, but whether she
knew they intended to assault Jackson with some object—regardless of whether they
brought the object with them or used an object they found in his apartment—in such a
manner as to be likely to cause death or great bodily injury. Based on the facts of this
case, we conclude the jury could have inferred as much.
Even if we were to find that there was insufficient evidence to support assault
with a deadly weapon as the target offense, there was enough evidence to support simple
assault as the target offense. We have no difficulty finding that the result would have
been the same had the trial court substituted simple assault as the target offense. While
murder “is not the natural and probable consequence of trivial activities,” setting up a
65–year–old man to be assaulted by drug dealers in his apartment is not a trivial activity.
21
A reasonable person in [Simmons’] position would have foreseen murder as a natural and
probable consequence of such an assault. Any error in using assault with a deadly
weapon as the target offense instead of simple assault was harmless.
Finally, [Simmons’] reliance on People v. Singleton (1987) 196 Cal.App.3d 488
(Singleton ) is misplaced. Singleton was convicted of possession of cocaine for sale and
transportation of the substance. She was a passenger in a vehicle driven by Bedell, who
was pulled over by police and arrested for driving under the influence. A search of the
vehicle uncovered a loaded handgun, which Singleton claimed belonged to her. She was
arrested and searched. A package of cocaine was found in her boot. (Id. at p. 491.) At
trial, the jury was given aiding and abetting instructions. The prosecutor told the jury
during closing argument that “the sole purpose for the aiding and abetting instruction was
to support the inference that defendant, while she may not have intended to sell cocaine
herself, could have intended to aid an unidentified seller of cocaine (whom he called ‘Mr.
X’), and therefore still have possessed the necessary intent to be guilty of possession for
sale. The prosecutor made clear, however, that the instructions were not meant to
suggest that the seller was Bedell, who, he opined, was the ‘one person whom she was
not aiding and abetting . . . .’” (Id. at p. 492.) The Court of Appeal held the
prosecution’s aiding and abetting theory was not supported by substantial evidence.
Pointing out that “the evidence justified the giving of an aiding and abetting instruction
based upon the theory that Bedell was the principal dealer of cocaine and that defendant
aided and abetted him by hiding the contraband,” the court explained: “We cannot accept
the notion that a defendant’s conviction can rest solely on a theory of aiding, promoting,
encouraging, or instigating a principal created from the whole cloth of pure speculation.
Indeed, we find it puzzling that the People should simultaneously admit that there was
insufficient evidence to convict defendant on the basis that she was Bedell’s accomplice,
but maintain that there was sufficient proof that she aided a phantom figure about whom
the jury had heard no evidence.” (Id. at pp. 492–493.)
Here, it is entirely possible that the two drug dealers who purportedly killed
Jackson in front of [Simmons] were created from the whole cloth of [Simmons’]
imagination. But this is very different from Singleton . . ., where the prosecutor used an
anonymous perpetrator created from his imagination to support an aiding and abetting
theory of criminal liability. Substantial evidence, in the form of [Simmons’] own
statements to Person, supported the People’s theory that she aided and abetted an assault
by two drug dealers on Jackson and that murder occurred as a natural and probable
consequence of the assault.
2. The Merger Doctrine
[Simmons] also contends that CALCRIM No. 403, as given to the jury in this
case, violated the merger doctrine described by our Supreme Court in People v. Ireland
(1969) 70 Cal.2d 522 (Ireland ). Not so.
In Ireland, supra, 70 Cal.2d 522, our Supreme Court held that a felony-murder
theory cannot be based on a felony that is an integral part of the homicide. To allow
otherwise “would effectively preclude the jury from considering the issue of malice
aforethought in all cases wherein homicide has been committed as a result of a felonious
22
assault—a category which includes the great majority of all homicides.” (Id. at p. 539.)
As we explained in People v. Karapetyan (2006) 140 Cal.App.4th 1172: “Because a
homicide generally results from the commission of an assault, every felonious assault
ending in death would be elevated to murder, relieving the burden of the prosecutor to
prove malice in most cases. [Citation.] This would frustrate the Legislature’s intent to
punish certain felonious assaults resulting in death more harshly than other assaults that
happened to result in death but were committed without malice aforethought. [Citation.]”
(Id. at p. 1178.) However, as we also explained in Karapetyan, “the natural and probable
consequences doctrine operates independently of the second degree felony-murder rule”
and “is a theory of liability for murder that applies when the assault has the foreseeable
result of death. For aider and abettor liability, it is the intention to further the acts of
another that creates criminal liability and not the felony-murder rule. [Citation.]”
While [Simmons] acknowledges “the Ireland doctrine has been found to be
inapplicable to aiding and abetting instructions,” she nevertheless argues that CALCRIM
No. 403, as given to the jury in this case, “required it to find that [defendant] directly
perpetrated an [assault with a deadly weapon].” [Simmons] continues: “Assuming [she]
personally committed an assault, it merged into the homicide. Therefore, it was error to
instruct the jury that it first had to find [she] committed an [assault with a deadly weapon]
before [it] could find her guilty of murder. The instruction relieved the jury of its
obligation to find malice aforethought, and lightened the prosecution’s burden of proof.”
[Simmons] misreads the instruction.
CALCRIM No. 403 does not require the jury to find that [Simmons] directly
perpetrated an assault with a deadly weapon. Instead, the instruction informed the jury
that the natural and probable consequences theory required the People to prove: “[t]hat
the Defendant is guilty of felony assault; during the commission [of] a felony assault a
co-participant in that felony assault committed the crime of murder; and under all the
circumstances, a reasonable person in the [Simmons’] position would have known that
the commission of the murder was a natural and probable consequence of the commission
of the felony assault.”
In order to determine whether there is a reasonable likelihood the jury
misunderstood “guilty” to mean “directly perpetrated,” as [Simmons] suggests, we must
review the instructions as a whole. CALCRIM No. 400 informed the jury that
[Simmons] could be “guilty” of a crime either by directly committing the crime or by
aiding and abetting the perpetrator. Moreover, after the jury expressed confusion over
the CALCRIM aiding and abetting instructions, the trial court provided CALJIC No.
3.01, which more clearly defined the elements of aider and abettor liability, and CALJIC
No. 3.02, which more clearly defined the natural and probable consequences doctrine:
“One who aids and abets another in the commission of a crime is not only guilty of that
crime, but is also guilty of any other crime committed by a principal which is a natural
and probable consequence of the crime originally aided and abetted. [¶] In order to find
the defendant guilty of the crime of murder as charged, or of any lesser offense, you must
be satisfied beyond a reasonable doubt that: [¶] 1. The crime of felony assault was
committed; [¶] 2. That the defendant aided and abetted that crime; [¶] 3. That a
co-principal in that crime committed the crime of felony assault; and [¶] 4. The crime of
23
murder was a natural and probable consequence of the commission of the crime of felony
assault.”
We find no reasonable likelihood the jury misunderstood these instructions to
allow [Simmons] to be convicted of murder if they found that she directly perpetrated a
felony assault that resulted in death. Instead, they required the jury to find that she aided
and abetted such an assault, which was committed by a co-principal, and that the crime of
murder was a natural and probable consequence of the assault. This is an accurate
statement of the law. We find no error. Nor do we find any constitutional violation.
3. Special Instruction
[Simmons] further asserts that the trial court’s special instruction “was erroneous
because it did not define a target offense, leaving the jury free to speculate about other,
undefined offenses, or nefarious conduct.” Again, we must review the instructions as a
whole rather than judge the trial court’s special instruction in isolation. The instructions
as a whole clearly identified assault with a deadly weapon as the target crime.
Finally, [Simmons] claims the trial court erred by refusing her request to include
in the special instruction the rule that an aider and abettor is not necessarily guilty of the
same crime as the actual perpetrator.
Penal Code section 1138 provides: “After the jury have retired for deliberation, if
there be any disagreement between them as to the testimony, or if they desire to be
informed on any point of law arising in the case, they must require the officer to conduct
them into court. Upon being brought into court, the information required must be given
in the presence of, or after notice to, the prosecuting attorney, and the defendant or his
counsel, or after they have been called.” (Italics added.) The trial court possesses broad
discretion “to determine what additional explanations are sufficient to satisfy the jury’s
request for information. [Citations.] In exercising that discretion, the trial court ‘must at
least consider how it can best aid the jury. It should decide as to each jury question
whether further explanation is desirable, or whether it should merely reiterate the
instructions already given.’ [Citation.]”
Here, the jury asked the trial court: “What are the necessary criteria to be an
accomplice to 2nd degree murder[?]” As already mentioned, the trial court responded by
referring the jury back to CALCRIM Nos. 400, 401, and 403 on aiding and abetting, and
to CALJIC Nos. 8.30 and 8.31 defining second degree murder. The trial court also
explained in a special instruction that a person “can be guilty as an aider and abettor of a
crime committed by another if he or she aided and abetted the commission of the crime
with the intent or purpose of aiding and abetting that crime. In addition to being guilty of
the intended crime, if another crime is committed during the commission of the intended
crime, a person can be guilty of the other crime, if, under all of the circumstances, a
reasonable person in the defendant’s position would have know[n] that the commission
of the other crime was a natural and probable consequence of the commission of the
intended crime.” The trial court did not abuse its discretion in determining that this
response would satisfy the jury’s request for additional information.
Nor are we persuaded by [Simmons’] reliance on People v. Nero (2010) 181
Cal.App.4th 504, which held that where “the jury asks the specific question whether an
24
aider and abettor may be guilty of a lesser offense, the proper answer is ‘yes,’ she can
be.” (Id. at p. 518.) Here, the jury did not ask whether defendant could be found guilty of
an offense less than the direct perpetrators. Moreover, unlike People v. Woods (1992) 8
Cal.App.4th 1570, also relied upon by [Simmons], the trial court did not improperly
instruct the jury that [Simmons] could not be found guilty of second degree murder as an
aider and abettor if the jury determined the direct perpetrators were guilty of first degree
murder. Instead, CALJIC No. 3.02, which was given to the jury to clear up any lingering
confusion about the natural and probable consequences doctrine, informed the jury that
defendant could be found guilty of “murder as charged, or of any lesser offense” (italics
added), if the jury found beyond a reasonable doubt: “1. The crime of felony assault was
committed; [¶] 2. That the defendant aided and abetted that crime; [¶] 3. That a
co-principal in that crime committed the crime of felony assault; and [¶] 4. The crime of
murder was a natural and probable consequence of the commission of the crime of felony
assault.”
Viewing the instructions as a whole, we find no reasonable likelihood the jury
misunderstood the instructions to preclude [Simmons] from being found guilty of a lesser
offense than the direct perpetrators. Indeed, because the natural and probable
consequences doctrine “requires separate factual determinations for (1) what crimes have
been committed, and (2) what crimes are the reasonably foreseeable consequences of the
offense originally contemplated, it is self-evident that the aider and abettor does not stand
in the same position as the perpetrator. While the perpetrator is liable for all of his or her
criminal acts, the aider and abettor is liable vicariously only for those crimes committed
by the perpetrator which were reasonably foreseeable under the circumstances.” We find
no instructional error.
Simmons, 2012 WL 1715860, at *12-18 (citations omitted).
Here, Simmons again argues that there was insufficient evidence to support the giving of
an aiding and abetting instruction. Such claim is without merit. Simmons does not contend that
CALCRIM Nos. 3.01 and 3.02 as given were incorrect; rather, she asserts that there was
insufficient evidence to warrant the instructions. But as the California Court of Appeal
reasonably found, there was sufficient evidence to warrant the instructions in light of Person’s
interview with Detective Jasperson, which supported the prosecution’s theory that she aided and
abetted an assault on Jackson by two drug dealers and that murder occurred as a natural and
probable consequence of that assault. Although Person claimed at trial that she had fabricated
her earlier story to police, Person’s videotaped interview was properly before the jury, who could
25
determine whether Person’s recantation of her earlier statement was credible. If the jury found
Person’s testimony not credible, it could certainly conclude that Person’s interview provided
sufficient evidence to support the prosecution’s aiding and abetting theory. Simmons’
arguments to the contrary simply raise questions of state law, which are outside the purview of
this Court. See Bradshaw, 546 U.S. at 76. Accordingly, the trial court did not err in finding that
aiding and abetting instructions were warranted.
Likewise, Simmons’ argument that the state court misapplied California’s merger
doctrine is not cognizable on federal habeas review either. See id.
And with respect to Simmons’ complaint that the trial court failed to identify in the
special instruction the target crime for felony murder, the Court concurs in the analysis of the
Court of Appeal. The significance of the trial court’s failure to identify the target offense for
second degree murder must be evaluated in context. See Henderson, 431 U.S. at 152. As the
Court of Appeal concluded, “The instructions as a whole clearly identified assault with a deadly
weapon as the target crime.” Simmons, 2012 WL 1715860, at *17.
Further, Simmons’ claim that the trial court committed constitutional error by failing to
instruct the jury that it could find Simmons guilty of a lesser offense if the jury believed that she
had a less culpable state of mind than the actual perpetrator does not warrant habeas relief. In
essence, Simmons complains that the trial court did not instruct the jury that it could convict her
of a lesser offense. But Simmons did not have a constitutional right to have the jury instructed
on any lesser offense to the crime of which she was convicted. “Under the law of [the Ninth
Circuit], the failure of a state trial court to instruct on lesser included offenses in a non-capital
case does not present a federal constitutional question.” Windham v. Merkle, 163 F.3d 1092,
26
1106 (9th Cir. 1998); see also Solis v. Garcia, 219 F.3d 922, 929 (9th Cir. 2000). Furthermore,
the United States Supreme Court has never held that a trial court’s failure to instruct on a lesser
included offense in a non-capital case violates due process of law. Rather, the Supreme Court
has held only that a defendant has a constitutional right to have the jury instructed on lesser
included offenses in capital cases. Beck v. Alabama, 447 U.S. 625, 638 (1980). In so holding,
the Supreme Court expressly declined to state whether that right extended to non-capital cases.
Id. at 638 n.14; see also Gilmore v. Taylor, 508 U.S. 333, 361-62 (1993) (Blackmun, J.,
dissenting ) (observing that Beck left open question of whether due process entitles criminal
defendants in non-capital cases to have jury instructed on lesser included offenses). Therefore,
the state court decision cannot be said to be contrary to, or an unreasonable application of,
federal law as decided by the Supreme Court. See Carey, 549 U.S. at 77 (where Supreme Court
precedent gives no clear answer to question presented, “it cannot be said that the state court
‘unreasonab[ly] appli[ed] clearly established Federal law’”). Simmons is not entitled to relief on
any argument advanced with respect to the aiding and abetting instructions.
b.
Voluntary intoxication
Simmons additionally argues that the trial court erred by instructing the jury with
CALCRIM No. 625, which informed the jury that it could consider evidence of her voluntary
intoxication only in deciding whether she: 1) acted with the intent to kill; 2) acted with
deliberation and premeditation; or 3) intended to permanently deprive Jackson of his property.
According to Simmons, “[t]his instruction was erroneous because it failed to inform jurors that:
(1) evidence of voluntary intoxication could be considered in determining whether [she] acted
with express or implied malice, and (2) it could consider evidence of voluntary intoxication in
27
determining whether [she] formed the specific intent necessary for aiding and abetting.” The
Court of Appeal rejected the claim, reasoning:
Because there was no evidence that [Simmons] was intoxicated at the time of the
murder, we presume the jury disregarded this instruction. Informing the jury that such
nonexistent evidence could also be considered in determining whether defendant acted
with implied malice or formed the specific intent necessary for aiding and abetting would
not have changed the result.
Simmons, 2012 WL 1715860, at *19.
A review of the record demonstrates that evidence that Simmons may have been
intoxicated at the time of the killing was limited, and there was no evidence that any asserted
intoxication affected Simmons’ actual formation of specific intent or malice. See People v.
Horton, 906 P.2d 478 (Cal. 1995) (voluntary intoxication instruction not warranted where
evidence showed only that defendant had freebased cocaine the day before the crimes, there was
no evidence that defendant was intoxicated at time of the crimes, and defendant’s statements
following the crimes showed defendant was “fully aware of his actions”). The Court of Appeal
thus reasonably concluded that the trial court did not err in refusing to give a voluntary
intoxication instruction unsupported by the evidence. See Williams v. Yarborough, 228 F. App’x
705 (9th Cir. 2007) (failure to give voluntary intoxication instruction did not violate petitioner’s
right to present a defense where California Supreme Court held evidence insufficient to warrant
such an instruction); Suon v. Carey, No. CVF 036201, 2006 WL 768633, at *5 (E.D. Cal. Mar.
24, 2006), adopted, 2006 WL 2065320 (E.D. Cal. July 24, 2006) (failure to give voluntary
intoxication instruction did not merit habeas relief where evidence showed only that the
petitioner was drinking on the day of the incident but did not show he was intoxicated or that his
mental state was affected by his drinking).
28
Moreover, as the Court of Appeal concluded in the alternative, any error was harmless.
In light of the minimal evidence of Simmons’ intoxication at the time of the incident and the
absence of evidence on the issue of whether any alleged intoxication affected Simmons’ actual
formation of specific intent, the failure to give a voluntary intoxication instruction could not
have had a “substantial and injurious effect or influence” on the verdict. See Brecht, 507 U.S. at
637. Accordingly, Simmons cannot prevail on this instructional error claim either.
3.
Refusal to Re-Open Closing Argument
Simmons additionally contends that the trial court violated her constitutional rights when
it denied her request to re-open closing argument after providing the jury with a supplemental
instruction on aiding and abetting (given after the conclusion of closing argument and in
response to a jury question). Simmons argues that the supplemental instruction presented the
jury with a new theory of liability and, because she did not have an opportunity to address it, she
was denied her right to present a defense as to all charges.
Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in
the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution
guarantees criminal defendants a meaningful opportunity to present a complete defense. Crane
v. Kentucky, 476 U.S. 683, 690 (1986). While the denial of an opportunity to make a closing
argument violates a criminal defendant’s constitutional rights, see Herring v. New York, 422 U.S.
853, 862 (1975) (finding that state statute authorizing trial judge in non-jury criminal case to
refuse to hear defense closing argument in its entirety violated the Sixth Amendment), a trial
court retains broad discretion to limit closing arguments. As the Herring Court explained:
This is not to say that closing arguments in a criminal case must be uncontrolled
or even unconstrained. The presiding judge must be and is given great latitude in
29
controlling the duration and limiting the scope of closing summations. He may limit
counsel to a reasonable time and may terminate argument when continuation would be
repetitive or redundant. He may ensure that arguments do not stray unduly from the
mark, or otherwise impede the fair and orderly conduct of the trial. In all these respects
he must have broad discretion.
Id. at 862 (citations omitted); see also United States v. Scheffer, 523 U.S. 303, 308 (1998) (a
defendant’s interest in presenting evidence may “bow to accommodate other legitimate interests
in the criminal trial process”) (citations and quotations omitted).
The Court of Appeal rejected this claim as follows:
Here, the jury was instructed on aiding and abetting, including the natural and
probable consequences doctrine, prior to closing arguments. Defense counsel was given
an opportunity to argue against this theory of liability in her closing argument to the jury.
However, because the prosecutor did not argue the aiding and abetting theory, neither did
defense counsel. It was not until the jury asked for clarification about accomplice
liability that defense counsel asked to re-open closing argument to address the theory.
Thus, the supplemental instructions given to address the jury’s questions did not
introduce “a new theory to the case,” but “merely clarifie[d] an existing theory.” Defense
counsel’s decision not to address the aiding and abetting theory in her closing argument
was a tactical decision. Counsel apparently decided she should not highlight a theory of
liability upon which the prosecution chose not to rely in her argument. We may not
second-guess such reasonable tactical decisions on appeal.
Simmons, 2012 WL 1715860, at *19 (citation omitted).
As an initial matter, to the extent Simmons renews here her argument on direct appeal
that the trial court abused its discretion under state law, such claim is not cognizable on federal
habeas review.3 Even if the trial court erroneously applied state law in following this course of
3
Although the Ninth Circuit has suggested that an abuse of discretion may also
amount to a constitutional violation, see Schell v. Witek, 218 F.3d 1017, 1025 (9th Cir. 2000) (en
banc), the Supreme Court has never held that abuse of discretion is an appropriate basis for
granting federal habeas relief. Indeed, quite to the contrary, the Supreme Court has strongly
suggested that, while abuse of discretion is an appropriate standard on direct review, in a federal
habeas proceeding it is not. Renico v. Lett, 559 U.S. 766, 772-73 (2010) (“It is not even whether
it was an abuse of discretion for her to have done so—the applicable standard on direct review.
The question under AEDPA is instead whether the determination of the Michigan Supreme
30
action, the decision of the California Court of Appeal rejecting this state law claim is binding on
this court and may not be challenged in this federal habeas corpus proceeding. Waddington v.
Sarausad, 555 U.S. 179, 192 n.5 (2009) (“we have repeatedly held that ‘it is not the province of
a federal habeas court to reexamine state-court determinations on state-law questions’”); Rivera
v. Illinois, 556 U.S. 148, 158 (2009) (“[A] mere error of state law . . . is not a denial of due
process”) (quoting Engle v. Isaac, 456 U.S. 107, 121, n.21 (1982) and Estelle, 502 U.S. at 67,
72-73).
Moreover, the Court agrees with the Court of Appeal that the supplemental instructions
did not interject any new theory into Simmons’ trial. Defense counsel was fully aware that the
prosecution was proceeding on a theory of direct liability or, alternatively, aiding and abetting
liability, given the aiding and abetting jury instructions submitted to the jury (discussed more
thoroughly above with respect to Simmons’ instructional error claims). The addition of CALJIC
No. 3.02 clarified causation under the natural and probable consequences test for the purposes of
aiding and abetting liability, and such liability was already in issue by virtue of the jury
instructions given prior to closing argument (CALJIC Nos. 400, 401, and 403). Cf. United States
v. Fontenot, 14 F.3d 1364, 1368 (9th Cir. 1994) (“a supplemental jury instruction which merely
clarifies an existing theory does not mandate additional arguments”).
As previously discussed, after the close of evidence, the jurors were presented with
several possible scenarios based on stories Simmons told to her son and friends regarding the
death of the victim. Defense counsel therefore had the opportunity to argue in closing that
Court that there was no abuse of discretion was ‘an unreasonable application of . . . clearly
established Federal law.’” (quoting § 2254(d)(1))).
31
Simmons witnessed the killing but did not assist it other than to clean up afterwards. She elected
to argue that she was not there during the killing, presumably because the prosecutor chose not
to stress the aiding and abetting scenario. It was only after the jury’s questions indicated that
they believed Simmons was present during the killing that Simmons moved to reopen closing
argument. Because CALJIC No. 3.02 did not interject any new theory of culpability or new
factual issue, there was no reason to reopen closing argument. Accordingly, the trial court’s
refusal to do so did not deprive Simmons of her constitutional right to make a closing argument
and instead fell within the trial court’s discretion to place reasonable limits on arguments.
Herring, 422 U.S. at 862.
4.
Admission of Evidence of Other Crimes
Simmons also alleges that the court violated her right to a fair trial when it admitted
evidence of threats she had made to a third party in an unrelated event. At trial, the prosecutor
elicited over defense objection testimony from Tyree that he had earlier told Detective Jasperson
that Simmons “made some threats” against a family friend named Joe. When Tyree would not
testify as to the substance of his statement, the prosecution played his earlier statement to law
enforcement for the jury. In the recorded statement, Tyree said that Simmons had told Joe that,
if he did not return money Joe had stolen from her, she would “have him killed” and that this
“aint’t gonna be the first time” she had somebody killed. Tyree described this event to Jasperson
after he asked why Tyree waited several months to report Simmons’ confession. The earlier
statement was admitted as a prior inconsistent statement both for impeachment purposes and for
the truth of the matter asserted to prove that Simmons had a propensity for violence.
32
On direct appeal, the Court of Appeal laid out the state law governing the admission of
such evidence:
[California] Evidence Code section 1101, subdivision (a), provides that “evidence
of a person’s character or a trait of his or her character (whether in the form of an
opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is
inadmissible when offered to prove his or her conduct on a specified occasion.”
Subdivision (b) of that section provides that a specific instance of a person’s conduct is
admissible “when relevant to prove some fact . . . other than his or her disposition to
commit such an act.” (Evid. Code, § 1101, subd. (b).) Subdivision (c) provides:
“Nothing in this section affects the admissibility of evidence offered to support or attack
the credibility of a witness.” (Evid. Code, § 1101, subd. (c).)
Simmons, 2012 WL 1715860, at *21.
The appellate court subsequently denied Simmons’ claim:
In general, Tyree’s prior statement to Detective Jasperson was relevant to
impeach his trial testimony in which he either recanted or claimed not to remember most
of what he previously told the detective. The specific statement about [Simmons’] threat
to have Joe killed bolstered the credibility of Tyree’s statement to Jasperson because it
provided Tyree with a legitimate reason to report [Simmons’] confession to police, i.e.,
he was concerned for the safety of his little sister and grandmother. Nor was the
statement unduly prejudicial under Evidence Code section 352. Tyree’s credibility was a
key issue for the jury to resolve. The probative value of Tyree’s prior inconsistent
statement on the issue of his credibility outweighed any prejudice caused by its
admission. We find no abuse of discretion.
Id.
The Supreme Court has acknowledged its “traditional reluctance to impose constitutional
restraints on ordinary evidentiary rulings by state trial courts.” Crane v. Kentucky, 476 U.S. 683,
689 (1986). The Supreme Court has further made clear that federal habeas power does not allow
granting relief on the basis of a belief that the state trial court incorrectly interpreted the state
evidence code in ruling on the admissibility of evidence. Estelle, 502 U.S. at 72 (citing Cupp v.
Naughten, 414 U.S. 141, 147 (1973); Henderson, 431 U.S. at 154; Donnelly v. DeChristoforo,
416 U.S. 637, 643 (1974)). On direct appeal, the appellate court determined that, in line with the
33
California Evidence Code and state case law, the trial court properly allowed into evidence
Tyree’s prior statement about Simmons’ threat to Joe. This Court is bound by the state court’s
interpretation of California state law. Bradshaw, 546 U.S. at 76.
Moreover, the United State Supreme Court has left open the question of whether state
law would violate the Due Process Clause if it permitted the use of prior crimes evidence to
show propensity to commit a charged crime. Estelle, 502 U.S. at 75 n.5 (“[W]e express no
opinion on whether a state law would violate the Due Process Clause if it permitted the use of
‘prior crimes’ evidence to show propensity to commit a charged crime.”); Mejia v. Garcia, 534
F.3d 1036, 1046 (9th Cir. 2008). As such, the Ninth Circuit has routinely found federal habeas
relief to be foreclosed by § 2254(d)(1) for claims challenging the admission of evidence of prior
bad acts or crimes. See, e.g., Larson v. Palmateer, 515 F.3d 1057, 1066 (9th Cir. 2008); Alberni
v. McDaniel, 458 F.3d 860, 866 (9th Cir. 2006). Consequently, Simmons cannot prevail on this
claim.
5.
Erroneous Read-Back of Testimony
Simmons also asserts that her conviction should be reversed because the jury
inadvertently heard Bishop Hinkson’s testimony, in which he stated that he believed Simmons
had sought him out in his capacity as a Mormon bishop in order to receive forgiveness and to
clear her conscience. During the jury’s deliberations, the court reporter mistakenly read back
testimony provided by Hinkson during a hearing under California Evidence Code § 402, the
purpose of which was to determine whether the clergy-penitent privilege precluded Hinkson
from testifying as to the content of Simmons’ statement to him. While the Court of Appeal
agreed that the jury should not have been allowed to consider extrinsic evidence such as the 402
34
testimony in reaching its verdict, it rejected Simmons’ claim that the read-back error violated her
constitutional rights. The appellate court reasoned that Simmons failed to establish prejudice for
the following reasons:
First, the trial court instructed the jury to disregard the hearing testimony they
inadvertently received. We presume the jury followed this instruction. Second, the
hearing testimony was nearly identical to the testimony the jury heard at trial. And
while, as [Simmons] points out, Hinkson testified at the hearing that he had previously
told Detective Jasperson that he believed [Simmons] came to his church seeking
“forgiveness” and “to talk about something that was on [her] conscience,” it is likely the
jury had already inferred as much from the fact that [Simmons] went to a church and
confessed her involvement in a murder to a clergyman. Moreover, the jury was informed
about [Simmons’] apparent remorse and desire for forgiveness through other sources at
trial. For example, when Tyree drove [Simmons] around in the police bait car,
[Simmons] stated that she told Person about the murder because she “was feeling guilty
about it that day.” Person confirmed this when she told Jasperson that she and
[Simmons] discussed asking “God for forgiveness.” And Joseph also told Jasperson that
[Simmons] “confessed” to her because she wanted to “get it off her chest.”
Simmons, 2012 WL 1715860, at *20 (citation omitted).
A trial error does not entitle a petitioner to federal habeas relief unless it “‘had [a]
substantial and injurious effect or influence in determining the jury’s verdict.’” Brecht, 507 U.S.
at 622 (quoting Kotteakos v. United States, 328 U.S. 750, 766 (1946)). Thus, habeas relief is
only available if the state court’s determination that the error was harmless beyond a reasonable
doubt was contrary to or an unreasonable application of Chapman v. California, 386 U.S. 18, 24
(1967), which governs harmlessness determination on direct review. Davis v. Ayala, 135 S. Ct.
2187, 2199 (2015) (reversing Ninth Circuit and holding that when state court’s harmlessness
determination “is reviewed under AEDPA, a federal court may not award habeas relief under
§ 2254 unless the harmlessness determination itself was unreasonable” (emphasis in original and
internal quotation marks omitted)). A state court’s decision is not unreasonable if “‘fairminded
jurists could disagree’ on [its] correctness.” Harrington, 562 U.S. at 101 (quoting Yarborough v.
35
Alvarado, 541 U.S. 652, 664 (2004)). Simmons “therefore must show that the state court’s
decision to reject h[er] claim ‘was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement.’” Ayala, 135 S. Ct. at 2199 (citing Harrington, 562 U.S. at 103).
Simmons cannot meet that heavy burden. The reasons listed by the Court of Appeal to
explain why the error did not violate Simmons’ constitutional rights are both reasonable and
fully supported by the record. For those reasons, Simmons cannot show that the read-back error
“had [a] substantial and injurious effect or influence in determining the jury’s verdict.” Brecht,
507 U.S. at 622. Simmons is thus not entitled to habeas relief on this claim either.
Ground Four:
Speedy Trial Violation
Simmons further contends that the 18-year delay in bringing charges prejudiced her
ability to prepare a defense and deprived her of due process. Simmons moved to dismiss the
case before the trial court on these grounds, arguing that the delay prejudiced her case due to
“the loss and destruction of physical evidence, the loss of witnesses, and the loss of some of the
witnesses’ ability to recall and remember events,” as well as the subsequent death of four
potential witnesses. Although concluding that Simmons’ claims were “either speculative or in
some respects perhaps overstated,” the trial court nonetheless found “some prejudice to require
the People to justify the pre-accusation delay.” The trial court ultimately found the justification
proffered by the People—that there was insufficient evidence to prosecute Simmons for the
murder until Tyree spoke with law enforcement about the case in 2009—outweighed any
36
potential prejudice to Simmons, and denied the motion to dismiss without prejudice.4 On direct
appeal, the Court of Appeal agreed with the trial court’s conclusion.
The Court of Appeal gave the following background to this claim:
[Simmons] accurately describes the relevant background in her motion to dismiss
the case: “The investigation, at the time of discovery of the decedent, continued in the
usual manner: [h]omicide detectives were assigned to the case; evidence was collected;
[Jackson’s] car was located and searched; photographs were taken; [Simmons’] home
was searched; witnesses were interviewed. None of the evidence collected or witnesses
interviewed proved that [defendant] had killed [Jackson].” Accordingly, “the
determination was made that there was insufficient evidence to support any charges being
filed against [Simmons] or anyone else.” Eighteen years later, there was a “‘change’”
which prompted the filing of charges: Tyree walked into the police station and informed
police that his mother had confessed to committing the crime. Subsequent investigation
revealed that defendant had also confessed to other people.
[Simmons] argued in her motion to dismiss that, notwithstanding these changed
circumstances, the delay in prosecution was not justified because law enforcement should
have done a more thorough investigation at the time of the murder. [Simmons] further
argued the delay in bringing charges prejudiced her defense because of “the loss and
destruction of physical evidence, the loss of witnesses, and the loss of some of the
witnesses’ ability to recall and remember events.” With respect to the loss of witnesses,
[Simmons] asserted, “Millicent Slater, the neighbor, and the decedent’s son Richard
Jackson, Jr., with whom he had a volatile relationship, are both dead. Furthermore, Blue
and John Gaines, the culprits in this homicide, are likewise dead.” [Simmons] offered no
evidence that these individuals were the murderers.
With respect to the loss of witness memories, [Simmons] argued: “Since so much
time has passed, it is now impossible to test the observations of witnesses on the night in
question or test the accuracy of what the police claim was said that night. It is impossible
to ask the questions that were not asked at the time of [Jackson’s] death about things they
may have seen or heard. [¶] If asked, witnesses could have supplied evidence as to the
comings and goings of other potential suspects, of suspicious things they saw or heard on
the date in question, reports of any fights, yelling or struggles coming from the room and
lists of disreputable people who frequented the area. Such information would have been
investigated to prove [Simmons] is not responsible for [Jackson’s] death.”
Finally, with respect to the loss of physical evidence, [Simmons] stated without
explanation that her defense was “disadvantaged in the fingerprint evidence.” She also
stated that her defense was disadvantaged because “there is evidence that [Jackson] had
AIDS and now it is impossible to show that the two culprits were likewise infected as a
4
The trial court noted that she would be permitted to renew her motion to dismiss
at the conclusion of evidence, but Simmons did not do so.
37
result of their confrontation with [Jackson].” According to [Simmons], “[a]s a result of
the delay, it is impossible for the defense to prove that [Jackson] was involved with other
[people who] would have had a motive for killing him and [obtain] the physical evidence
linking them to the crime.” She further argued that “it is too late at this point to re-trace
the steps of the investigating officers and follow the leads they did not follow, even
though there were many.”
The trial court denied the motion to dismiss. Stating that the foregoing claims of
prejudice were “either speculative or in some respects perhaps overstated,” the trial court
found “some prejudice sufficient to require the People to justify the pre-accusation
delay.” The trial court then found the justification offered by the People, i.e., that there
was insufficient evidence to prosecute defendant for the murder until new evidence
literally walked into the police station, to be “strong” and similar to the situation
presented in New, supra, 163 Cal.App.4th 442[.] The trial court concluded that
[Simmons] would not be “denied a fair trial because of this delay” and denied the motion
to dismiss without prejudice to her ability to renew the motion at the conclusion of the
evidence.
During trial, [Simmons] asked the trial court to allow her to call certain police
officers to testify to the content of out-of-court statements made by four people who were
interviewed during the initial investigation. These people were Slater, Terry Hobbs,
Maryanne Berube, and Roxanne Henderson. According to [Simmons], Slater, Hobbs,
and Berube told police “about who they saw in and about [Jackson’s] apartment the
day—likely the day of his death.” [Simmons] also stated that Henderson told police that
she “heard” that Jackson “had a date with a girl on the day he was killed” and that
“[t]here were reportedly two males with this girl,” but that she did not “know who she
heard this from.” Acknowledging that these statements were “technically hearsay,”
defendant explained that because Slater was dead, and Hobbs, Berube, and Henderson
had not been located, “the only way for that information to be before the jury is through
the officers who took those reports from those witnesses.” [Simmons] argued that
because the absence of these witnesses was caused by the delay in prosecution, due
process required the trial court to provide “some leeway in getting that information
before the jury.” [Simmons] also mentioned that Jackson’s son and one of the crime
scene investigators who processed certain latent prints in the case, CSI Hudson, were also
dead.
The trial court sustained the People’s objection to the proposed testimony, ruling
that [Simmons’] right to due process did not require admission of the proffered hearsay.
The trial court also reminded [Simmons] that she would be permitted to renew her
motion to dismiss the case because of the delay in bringing charges at the conclusion of
the evidence. [Simmons] did not do so.
Simmons, 2012 WL 1715860, at *6-7.
38
Although Simmons characterizes this claim as a violation of her right to a speedy trial,5
the Supreme Court held in 1971 that a defendant may assert a constitutional violation for preindictment delay under the Due Process Clause, but not under the speedy trial guarantee of the
Sixth Amendment. United States v. Marion, 404 U.S. 307, 325 (1971) (holding that the
defendant failed to establish a due process violation because “[n]o actual prejudice to the
conduct of the defense is alleged or proved, and there is no showing that the Government
intentionally delayed to gain some tactical advantage over appellees or to harass them”). The
Supreme Court has further stressed that, in considering such due process claim, the inquiry must
consider not only the prejudice to the accused, but also the reasons for the delay:
In our view, investigative delay is fundamentally unlike delay undertaken by the
Government solely “to gain tactical advantage over the accused,” precisely because
investigative delay is not so one-sided. Rather than deviating from elementary standards
of “fair play and decency,” a prosecutor abides by them if he refuses to seek indictments
until he is completely satisfied that he should prosecute and will be able promptly to
establish guilt beyond a reasonable doubt. Penalizing prosecutors who defer action for
these reasons would subordinate the goal of “orderly expedition” to that of “mere speed.”
This the Due Process Clause does not require. We therefore hold that to prosecute a
defendant following investigative delay does not deprive him of due process, even if his
defense might have been somewhat prejudiced by the lapse of time.
United States v. Lovasco, 431 U.S. 783, 795 (1977).
The Court of Appeals for the Ninth Circuit likewise has held that a defendant must first
show “actual, non-speculative prejudice from the delay.” United States v. Corona-Verbera, 509
F.3d 1105, 1112 (9th Cir. 2007). Showing actual prejudice is a “‘heavy burden’ that is rarely
5
The Sixth Amendment to the United States Constitution guarantees an accused
criminal the right to a speedy trial. Doggett v. United States, 505 U.S. 647, 651 (1991)
(explaining that a court should assess four factors in determining whether the Sixth Amendment
right to a speedy trial has been violated: (1) the length of the delay; (2) the reason for the delay;
(3) whether the defendant asserted the right; and (4) whether the defendant suffered prejudice as
a result of the delay); Barker v. Wingo, 407 U.S. 514, 530 (1972).
39
met.” Id. (quoting United States v. Huntley, 976 F.2d 1287, 1290 (9th Cir. 1992)). “Generalized
assertions of the loss of memory, witnesses, or evidence are insufficient to establish actual
prejudice. Consequently, [a defendant] must show both that lost testimony, witnesses, or
evidence meaningfully has impaired his ability to defend himself, and [t]he proof must
demonstrate by definite and non-speculative evidence how the loss of a witness or evidence is
prejudicial to [his] case.” Id. (internal quotation marks and citations omitted). Once the
defendant shows actual prejudice, he must next show that this prejudice outweighs the reasons
for the delay, and the delay “offends those ‘fundamental conceptions of justice which lie at the
base of our civil and political institutions.’” Id. (quoting United States v. Sherlock, 962 F.2d
1349, 1353-54 (9th Cir. 1989)).
Here, the record reveals the trial court employed a full inquiry into Simmons’ contentions
of prejudice in considering her motion to dismiss, and the Court of Appeal subsequently
examined in detail every basis upon which Simmons claimed prejudice. The Court of Appeal
thoroughly described that review in its reasoned opinion rejecting Simmons’ speedy trial claim:
We also agree with the trial court’s assessment that [Simmons’] claims of
prejudice were either “speculative” or “overstated.” [Simmons] argues that Slater was a
“very important witness” who “had information that could have been helpful to the
defense, and would have been investigated by the defense, had this crime been timely
prosecuted.” As mentioned, Slater was the apartment manager who accompanied Hayes
to Jackson’s apartment and called the police when Hayes discovered the body. Earlier
that day, Slater called the police and reported a “suspicious subject” hanging around her
apartment, which was close to Jackson’s apartment. The jury was informed of this
through the testimony of Detective Woods. While [Simmons] claims that Woods did not
“follow-up on this critical information,” she does not support this assertion with any
citation to the record. Nor did she question Woods about whether he followed up on
Slater’s statement. [Simmons] also claims prejudice from the fact that she was unable to
question Slater about her observations at Jackson’s apartment when Hayes discovered the
body. However, the record indicates that Slater was “almost legally blind.” We are not
persuaded that Slater’s testimony concerning what she witnessed at Jackson’s apartment
would have been helpful to the defense.
40
With respect to Jackson’s son, [Simmons] asserts, “[t]he defense had information
that [he] had a volatile relationship with his father, making him a potential suspect in
Jackson’s killing.” The record does not reveal what this information was. Indeed, the
only evidence in the record is to the contrary. Hayes testified that Jackson and his son
“got along pretty good.” Hayes also testified that when she arrived at Jackson’s
apartment complex to check on him, Slater told her that Jackson’s son tried to see him the
previous day, which was Father’s Day. Because Jackson’s car was not there, his son
assumed he had not come home the night before, waited in front of the apartment for a
period of time, and then left. Moreover, while Detective Woods testified that family
members were questioned early in the investigation, there was no evidence that Jackson’s
son was ever considered a suspect. Nor were his fingerprints found in Jackson’s
apartment or vehicle.
With respect to Blue and John Gaines, [Simmons] states that they were “two
drug-dealers believed to be responsible for this crime,” but cites no evidence to support
this assertion. While she argues that the delay in prosecution prevented her from
exploring their “possible involvement” in the murder, that is simply not true. She was
apparently able to uncover that these men died. An investigator could have interviewed
people who knew these men, found out where they lived at the time Jackson was
murdered, discovered where they did business, determined whether or not they had any
connection to Jackson, and so forth. In the absence of any evidence that these men had a
reason to kill Jackson, disliked him, or even knew who he was, we must conclude
[Simmons’] assertion that they were the actual murderers is pure speculation.
[Simmons] complains that she was deprived of the ability to question Hobbs,
Berube, Henderson, and three other people, Sheila Talbert, Marilyn Brown, and
Stephanie Taylor. She did not identify any of these people in her motion before the trial
court. An argument on appeal may not invoke facts different from those the trial court
was asked to apply. In any event, [Simmons] does not demonstrate these people were
either dead or unavailable at the time of trial. Nor does she demonstrate that their
testimony would have been useful.
[Simmons] also complains that the death of CSI Hudson prevented her from
impeaching “his collection of the evidence: how the prints were lifted, how they were
processed, where they were taken from, and whether the print cards were accurate.”
Because [Simmons] did not mention the death of CSI Hudson in her motion before the
trial court, she may not rely on his death to support her argument on appeal. In any
event, [Simmons] could have called an expert to challenge the quality of CSI Hudson’s
work. Moreover, the prints found on the Brillo pad wrapper were not processed by CSI
Hudson. These prints were processed by CSI Sue Conradi, who did testify, and who was
cross-examined by defense counsel.
[Simmons] further asserts that the delay “naturally caused memories to fade” and
enabled Hinkson to “change his story.” With respect to the fading of memories, we
agree. But this prejudiced both [Simmons] and the prosecution. With respect to Hinkson
changing his story, we disagree. When Hinkson was interviewed by Detective Jasperson,
he stated that the woman who came to his church told him that “she was involved in a
homicide, but he could not recall specifically whether or not she said she actually
41
committed it.” At trial, Hinkson testified that after speaking to Jasperson he spent some
time thinking about his previous conversation with the woman and remembered that she
believed she was “responsible” for the man’s death, and that she mentioned “the cause of
death may have been a blunt force trauma.” [Simmons] argues: “Obviously, if Hinkson
had been interviewed 18 years earlier, when his memory was fresh, his story would have
been clear and defined for trial. And given what he initially told Jasperson, he would not
necessarily have been a helpful witness for the prosecution.”
There are several problems with this argument. First, Hinkson could not have
been interviewed 18 years earlier because [Simmons] did not tell him about the crime
until about eight years before his interview with Jasperson. Second, Hinkson could not
have been interviewed prior to 2009, when Tyree informed Jasperson that his mother had
confessed to the crime and told him about her conversation with Hinkson. Third, even if
police had somehow found out about [Simmons’] conversation with Hinkson when it
happened, and interviewed Hinkson immediately thereafter, there is no reason to believe
that his testimony would have been any different.
Finally, [Simmons] claims to have been prejudiced by the loss of physical
evidence. Specifically, she faults Detective Woods for failing to collect or test any of the
blood at the crime scene and for failing to use chemicals to verify his visual observation
that there was no blood in the kitchen and bathroom sinks. According to [Simmons],
“[t]he defense believed that the true killers, Blue and Gaines, suffered from HIV/AIDS,”
and that “[t]esting on the blood could have corroborated the defense.” There is no
evidence that Blue and John Gaines had HIV/AIDS. Nor is there any evidence that
Jackson had the virus. Thus, the idea that testing the blood at the crime scene could have
corroborated the theory that these purported drug dealers were infected with HIV during
their assault on Jackson is pure speculation.
[Simmons] also complains that additional scientific testing could have been done
on certain items of evidence collected at the crime scene. But these items of evidence
were available at the time of trial, and [Simmons] neither had the items tested nor
presented any expert testimony that the passage of time prevented her from doing so.
Simmons, 2012 WL 1715860, at *10-12.
The Court of Appeal likewise held that the prosecutor’s reasons for the delay were
legitimate and justified:
Here, the District Attorney determined there was insufficient evidence to
prosecute [Simmons] for Jackson’s murder in 1991. While her fingerprints were
discovered in Jackson’s apartment and in his vehicle, [Simmons’] statements to police at
the time of the initial investigation provided a plausible explanation for the presence of
these prints, i.e., Jackson picked her up in his car and brought her back to his apartment
to engage in an act of prostitution. [Simmons] also stated that Jackson bought her some
cocaine with the money he paid for the “trick” at 16th Avenue and Martin Luther King
Boulevard, and that she drove the car because Jackson was “drunk,” which provided a
42
plausible explanation for her prints being found on the driver’s side of the vehicle and for
the driver’s seat being positioned so close to the steering wheel. [Simmons’] statements
did not explain the presence of her prints on the Brillo pad wrapper. However, without
additional evidence tying [Simmons] to the commission of the crime, e.g., the murder
weapon or blood-stained clothing, we cannot second-guess the District Attorney’s
conclusion that the evidence was insufficient to prove her guilt beyond a reasonable
doubt.
Everything changed in 2009 when Tyree told Detective Jasperson that his mother
had confessed to the crime. Without question, [Simmons’] confession constituted new
evidence of her guilt. This confession was then corroborated by [Simmons’] statements
to Hinkson, Joseph, and to a lesser degree, Person. Armed with this new evidence, the
District Attorney charged [Simmons] with Jackson’s murder. We agree with the trial
court that the People provided a strong justification for the delay.
Id. at *9-10.
On federal habeas review, this Court’s task is not to make an independent, de novo
determination as to whether the prejudice suffered by Simmons was outweighed by the
justification for the delay. Rather, this Court is to determine whether the state court’s conclusion
that the delay was due to law enforcement’s inability to charge Simmons until 2009, and that it
outweighed the prejudice Simmons suffered, was objectively reasonable. Williams, 529 U.S. at
412-13. Based on a review of the thorough record developed by the trial court and described on
direct appeal, this Court must conclude that it was. Simmons has not shown that the California
courts’ findings of fact were unreasonable, or that the factual and legal conclusions that:
a) Simmons did not suffer substantial prejudice, b) the delay was justified, and c) the prejudice
did not outweigh the reasons for the delay, contravened or unreasonably applied clearly
established federal law. Accordingly, Simmons cannot show that the pre-indictment delay
violated her due process rights, and she is not entitled to relief on this ground.
43
Ground Five:
Cumulative Error
Simmons additionally alleges that the cumulative effect of the alleged errors she
identifies in Grounds One through Four warrant reversal of her conviction. Simmons raised this
claim in her state habeas petition to the California Supreme Court, which was summarily denied.
“While the combined effect of multiple errors may violate due process even when no
single error amounts to a constitutional violation or requires reversal, habeas relief is warranted
only where the errors infect a trial with unfairness.” Peyton v. Cullen, 658 F.3d 890, 896-97 (9th
Cir. 2011) (citing Chambers v. Mississippi, 401 U.S. 284, 298, 302-03 (1973)). Such “infection”
occurs where the combined effect of the errors had a “substantial and injurious effect or
influence in determining the jury’s verdict.” Brecht, 507 U.S. at 623 (citation omitted). In other
words, where the combined effect of individually harmless errors renders a criminal defense “far
less persuasive than it might [otherwise] have been,” the resulting conviction violates due
process. See Chambers, 401 U.S. at 294. As discussed above, however, Simmons does not
allege any claims that amount to error, and thus she demonstrates no errors that can accumulate
to a level of a constitutional violation. See Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir.
2002). Accordingly, Simmons is not entitled to relief on her cumulative error claim.
Ground Six:
Prosecutorial Misconduct
Finally, Simmons claims that the prosecutor knowingly elicited false testimony from her
son, Anthony Tyree, and compensated him for his false testimony. Simmons raised this claim in
her state habeas petition to the California Supreme Court, which was summarily denied.
The record indicates that, prior to trial, Tyree did not have a permanent residence. The
prosecutor offered Tyree witness protection, which would provide Tyree living expenses in
44
exchange for his testimony at trial. Tyree received in excess of $1,000 through this arrangement,
but left the program prior to trial. Although the prosecution offered him a chance to re-enter,
Tyree refused.
After asserting his Fifth Amendment right to remain silent, Tyree testified at trial
pursuant to a grant of immunity from the prosecution. Nonetheless, Tyree maintained that he
had fabricated the details of Simmons’ confession that he gave to Detective Jasperson on January
23, 2009. He claimed that he only went to the police with a fabricated story of murder to help
Simmons receive medical help through incarceration. According to his statements at trial, Tyree
went to the police in January 2009 because he was concerned about the safety of his family
members and feared that his mother might hurt herself after he witnessed his mother acting
crazy, belligerent, and mean. Tyree further testified that he refrained from earlier telling law
enforcement that his accusations were false because he wanted to garner more money through
the witness protection program. Simmons brings two related claims with respect to these facts:
1) the prosecutor knowingly elicited false testimony from Tyree; and 2) the prosecutor
impermissibly compensated Tyree to obtain the perjured testimony.
1.
Perjured Testimony
“[T]he [Supreme] Court has consistently held that a conviction obtained by the knowing
use of perjured testimony is fundamentally unfair, and must be set aside if there is any
reasonable likelihood that the false testimony could have affected the judgment of the jury.”
United States v. Agurs, 427 U.S. 97, 103 (1976) (footnotes omitted). The essential elements of
such successful claim are that (1) the testimony is false or perjured, (2) the prosecutor knew that
the testimony was false or perjured, and (3) the false testimony was material. Hayes v. Brown,
45
399 F.3d 972, 984 (9th Cir. 2005) (en banc); see Napue v. Illinois, 360 U.S. 264, 269 (1959);
Murtishaw v. Woodford, 255 F.3d 926, 959 (9th Cir. 2001). Thus, if Simmons successfully
shows that the prosecutor knowingly elicited perjured testimony material to her case, habeas
relief may be warranted.
Here, Simmons’ false testimony claim is a little confusing, as Tyree’s testimony at trial,
in which he recanted his earlier statement to law enforcement alleging that Simmons confessed
to the murder, was exculpatory to Simmons. And, although the prosecutor has a duty to refrain
from knowingly presenting perjured testimony, United States v. Geston, 299 F.3d 1130, 1135
(9th Cir. 2002), the record does not support Simmons’ unsupported contention that the
prosecution knowingly introduced the perjured testimony of Tyree or induced him to change his
testimony to suit the prosecution. Indeed, Simmons has failed to show that Tyree perjured
himself at trial, particularly given that she has consistently argued that Tyree’s testimony
recanting his earlier allegations was credible.
Rather, the prosecution introduced Tyree’s prior accusations against his mother as prior
inconsistent statements to discredit his trial testimony exonerating his mother and as substantive
evidence that the prior accusations were true. It is these prior statements that Simmons contends
were perjured. But Simmons’ arguments and both versions of Tyree’s statements were before
the jury, who ultimately decided that Tyree’s prior accusations were not false. Simmons thus
fails to demonstrate prosecutorial misconduct under these circumstances.
2.
Impermissible Compensation
Simmons’ related argument that the prosecution impermissibly compensated Tyree
appears to rely on a decision in which a panel majority of the Fifth Circuit, interpreting
46
Williamson v. United States, 311 F.2d 441 (5th Cir. 1962), found impermissible a contingent fee
arrangement premised on the informant’s ability to implicate a preselected individual and assist
in obtaining a conviction. See United States v. Cervantes-Pacheco, 800 F.2d 452, 457-60 (5th
Cir. 1986).
As an initial matter, the record here indicates that Tyree did not receive monetary
compensation of the type found impermissible in Williamson and Cervantes-Pacheco. It was
established that Tyree had received living expenses as part of the witness protection program,
not that he had been paid for his testimony. See Williams v. Yarborough, 228 F. App’x 705, 707
(9th Cir. 2007) (noting that witness protection program payments did not constitute payment for
witness’s testimony). In any event, the Fifth Circuit, sitting en banc, reversed the panel majority
and overruled Williamson, concluding that “the credibility of the compensated witness, like that
of the witness promised a reduced sentence, is for a properly instructed jury to determine.”
United States v. Cervantes-Pacheco, 826 F.2d 310, 316 (5th Cir. 1987) (en banc). The Ninth
Circuit has agreed “that the government is not precluded from using informants before or during
trial simply because an informant may have a motive to falsify testimony or entrap innocent
persons.” United States v. Cuellar, 96 F.3d 1179, 1182 (9th Cir. 1996). As the Supreme Court
explained:
it does not follow that his testimony was untrue, nor does it follow that his
testimony was constitutionally inadmissible. The established safeguards of the
Anglo-American legal system leave the veracity of a witness to be tested by
cross-examination, and the credibility of his testimony to be determined by a properly
instructed jury. At the trial of this case, [the informant] was subjected to rigorous
cross-examination, and the extent and nature of his dealings with federal and state
authorities were insistently explored. The trial judge instructed the jury, both specifically
and generally, with regard to assessing [the informant’s] credibility. The Constitution
does not require us to upset the jury’s verdict.
47
Hoffa v. United States, 385 U.S. 293, 311-12 (1966) (footnotes omitted).
Notably, Simmons does not allege that the prosecution failed to disclose the arrangement
that provided Tyree with living expenses, the non-disclosure of which could warrant habeas
relief as a Brady6 violation. See Quezada v. Scribner, 611 F.3d 1165, 1166 (9th Cir. 2010)
(remanding to district court to hold evidentiary hearing as to state petitioner’s claim that the
government withheld evidence of compensation paid to a prosecution witness in violation of
Brady). Nor can she: the record is clear that Tyree testified as to the payments that were made,
and the defense was able to thoroughly cross-examine him as to that issue. Accordingly,
Simmons is not entitled to relief as to this contention either.
V. CONCLUSION AND ORDER
Simmons is not entitled to relief on any ground raised in her Petition.
IT IS THEREFORE ORDERED THAT the Petition under 28 U.S.C. § 2254 for Writ
of Habeas Corpus is DENIED.
IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of
Appealability. See 28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S. 668, 705 (2004) (“To obtain
a certificate of appealability, a prisoner must ‘demonstrat[e] that jurists of reason could disagree
with the district court’s resolution of his constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to proceed further.’” (quoting Miller-El,
6
Brady v. Maryland, 373 U.S. 83 (1963). The term “Brady” is a shorthand
reference to the rules of mandatory discovery in criminal cases under federal law. Brady and its
progeny require the prosecution to disclose material information that is “favorable to the
accused, either because it is exculpatory, or because it is impeaching.” Strickler v. Greene, 527
U.S. 263, 281-82 (1999).
48
537 U.S. at 327)). Any further request for a Certificate of Appealability must be addressed to the
Ninth Circuit Court of Appeals. See FED. R. APP. P. 22(b); 9TH CIR. R. 22-1.
The Clerk of the Court is to enter judgment accordingly.
Dated: December 8, 2015.
/s/James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge
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