Briggs v. Foulk
Filing
44
MEMORANDUM DECISION signed by Senior Judge James K. Singleton on 3/22/2019 DENYING 1 Petition for Writ of Habeas Corpus. IT IS FURTHER ORDERED THAT the Court DECLINES to issue a Certificate of Appealability (COA). Any further request for a COA must be addressed to the 9th Circuit Court of Appeals. CASE CLOSED. (York, M)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
BRYANT KEITH BRIGGS,
No. 2:14-cv-01533-JKS
Petitioner,
MEMORANDUM DECISION
vs.
JARED D. LOZANO, Acting Warden,
California Medical Facility,1
Respondent.
Bryant Keith Briggs, 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. Briggs is in the custody of the
California Department of Corrections and Rehabilitation and incarcerated at the California
Medical Facility. Respondent has answered, and Briggs has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
On January 23, 2008 Briggs was charged with residential robbery (Count 1); residential
burglary (Count 2); premeditated attempted murder (Count 3); kidnapping to commit robbery
(Count 4); and possession of cocaine base for sale (Count 5). The information alleged as to
Counts 1, 3, and 4 that Briggs personally inflicted great bodily injury on the victim and that
Briggs personally used a firearm in the commission of the offense as to Counts 1 and 2. On
direct appeal of his conviction, the California Court of Appeal laid out the following facts
underlying the charges against Briggs:
1
Jared D. Lozano, Acting Warden, California Medical Facility, is substituted for F.
Foulk, former Warden, High Desert State Prison. FED. R. CIV. P. 25(c).
At the time of the offenses, the victim, David Campbell, regularly got high, his
drug of choice being crack cocaine. He went to the Jamestown Apartments because it
was a gathering place for people to go to get and use drugs. On the date in question, he
went to apartment 232 with Shonda Batson to get high and have sex. Campbell brought
crack cocaine with him, which the two of them smoked.
After they smoked all of the crack he brought with him, they decided they wanted
more. Campbell had no more money. Batson told Campbell she had some money and
knew someone from whom she could buy drugs. She agreed to go get more drugs.
When Batson returned to the apartment, she had [Briggs] with her. Campbell saw
Batson give money to [Briggs] and saw [Briggs] give crack cocaine to Batson. Campbell
was hazy on the specifics, but he remembered [Briggs] saying something about money
being owed and pointing to him (Campbell). Campbell told [Briggs] he just wanted the
dope.
Batson proceeded to smoke the dope she purchased, and did not give any to
Campbell. Campbell decided to leave, and went out to the walkway outside the
apartment. [Briggs] was on the walkway. He told Campbell that Campbell owed him
money for the dope. Campbell said he hadn't smoked any of the dope, and owed him no
money. [Briggs] told Campbell that they needed to go back into the apartment and talk
about it. About that time another man came up behind them, identified as Harvest
Thomas, and Campbell felt surrounded. Campbell went back into apartment 232 with
[Briggs] and Thomas, because he felt there would be violence if he refused.
After the trio was inside the apartment and the door was closed, [Briggs] and
Thomas pulled guns on Campbell and demanded money. Thomas hit Campbell on the
side of the head with his gun. Campbell opened his wallet to show that he had no money.
[Briggs] then demanded that Campbell take off his clothes. When Campbell had
undressed, [Briggs] told him to go outside. Campbell refused. Campbell, deciding to
fight back, grabbed Thomas, threw him across the stair rail, and grabbed his gun.
Campbell and Thomas struggled. [Briggs] dived on top of them and the three fell onto
the couch. [Briggs] pointed his gun at Campbell and shot him in the head.
Campbell survived the gunshot wound. He was treated in the emergency room
for a gunshot wound to the left temple. The bullet lodged in Campbell’s neck. Blood
tests indicated Campbell’s blood alcohol level was 0.097, and his urine tested positive for
cocaine.
Campbell picked [Briggs] and Thomas out of separate photo lineups. When
Campbell was shown [Briggs’] photograph he stated “He’s . . . the guy that shot me.”
Law enforcement first searched Thomas’s residence. One of the items seized was
a cell phone. There were pictures in the cell phone of clear plastic baggies containing a
substance, of clear plastic baggies containing money, and of an individual fanning
money. Also, the address book of the cell phone contained the name Brian and a phone
number that was previously [Briggs’] phone number.
The next day, officers searched apartment 222 at the Jamestown Apartments,
which belonged to [Briggs’] mother. The search uncovered a repair receipt, in [Briggs’]
name for an automobile, and a mini scale.
2
[Briggs] was arrested in apartment 231 of the Jamestown Apartments, the
apartment directly next door to the apartment where the shooting occurred. In a search
incident to the arrest, the officers found $886 in cash, three grams of marijuana packaged
for sale, a small gram scale, a notebook which had buy-owe notations, and some
.38–caliber bullets.
People v. Briggs, No. C064743, 2013 WL 257068, at *1-2 (Cal. Ct. App. Jan. 23, 2013).
Briggs pled not guilty to the charges, denied the accompanying allegations, and
proceeded to a jury trial, the first of which ended in a mistrial as to all counts. During voir dire
in his second trial, defense counsel made a Batson/Wheeler2 motion, arguing that the prosecutor
had systemically excluded African-Americans from the jury. The trial court ruled that Briggs
had not established a prima facie case of racial bias and denied the motion. At the conclusion of
trial, the jury convicted Briggs of residential robbery, residential burglary, attempted murder,
false imprisonment, and possession of cocaine base for sale. The jury further found true
allegations that Briggs had personally inflicted great bodily injury upon the victim and
personally used a firearm in the commission of the offense. After the trial court denied Briggs’
motion for a new trial, it sentenced him to a term of 33 years and 8 months to life imprisonment.
Through counsel, Briggs appealed his conviction, arguing that: 1) the prosecutor’s use of
peremptory challenges to remove two African-American prospective jurors constituted racial
bias; 2) the prosecution did not present legally-sufficient evidence that he possessed crack
cocaine; 3) the trial court erred in instructing the jury that it could consider the witness’s level of
certainty in evaluating an eyewitness’s identification; and 4) trial counsel rendered ineffective
2
See Batson v. Kentucky, 476 U.S. 79 (1986) (a shorthand reference to the
procedure under which a prosecutor’s peremptory strikes of potential jurors are challenged on
the basis that the strikes are being made on a discriminatory basis, i.e., because they are members
of an identifiable group distinguished on racial, religious, ethnic, or similar grounds); People v.
Wheeler, 583 P.2d 748 (Cal. 1978) (the California counterpart to Batson).
3
assistance for a variety of reasons. The Court of Appeal unanimously affirmed the judgment
against Briggs in a reasoned, unpublished opinion issued on January 23, 2013. Briggs, 2013 WL
257068, at *11. The California Supreme Court summarily denied review on April 10, 2013. His
conviction became final on direct review 90 days later, when his time to file a petition for
certiorari in the U.S. Supreme Court expired on July 9, 2013. See Jiminez v. Quarterman, 555
U.S. 113, 119 (2009); Spitsyn v. Moore, 345 F.3d 796, 798 (9th Cir. 2003).
Briggs timely filed a pro se Petition for a Writ of Habeas Corpus to this Court on June
22, 2014. Docket No. 1 (“Petition”); see 28 U.S.C. § 2244(d)(1)(A).
II. GROUNDS RAISED
In his pro se Petition before this Court, Briggs raises five grounds for relief. In the first
four claims, Briggs argues that trial counsel was ineffective for failing to: 1) retain an eyewitness
identification expert; 2) call certain witnesses at trial; 3) object to the admission of evidence
found in apartment 231 incident to his arrest there; and 4) object to the admission of evidence
found in apartment 222. Briggs additionally argues that the prosecution impermissibly used a
peremptory challenge to excuse from the jury pool two African-American potential jurors.
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
4
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
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)
5
(citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). A summary denial 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 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
A.
Ineffective Assistance of Counsel (Grounds 1-4)
Briggs first argues that trial counsel was ineffective for a variety of reasons. To
demonstrate ineffective assistance of counsel under Strickland v. Washington, a defendant must
show both that appellate 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.
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:
6
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, Briggs must show that 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).
1.
Failure to retain an eyewitness identification expert
Briggs first faults counsel for failing to retain an eyewitness identification expert. He
argues, as he did on direct appeal, that such expert was necessary to help the jury understand
how Campbell’s stress and head wound adversely impaired his memory, and to enable defense
counsel to adequately cross-examine the office who had administered the photographic lineup to
Campbell. The Court of Appeal considered and rejected this claim on direct appeal as follows:
At the hearing on the motion, [Briggs] testified that prior to his trial he told his
counsel multiple times he wanted to get an eyewitness expert. He claimed his counsel
said that an expert was not necessary because the jury would be able to see that the
victim had been high. [Briggs] further claimed that he had attempted to tell the court that
he wanted such an expert, but that when he raised his hand, the court indicated he had to
communicate through his attorney.
[Briggs’] trial counsel testified at the hearing. He stated that he did not recall
multiple discussions with [Briggs] about retaining an eyewitness expert. Counsel stated
7
that he had considered retaining an expert on eyewitness identification, but did not do so
because after conferring with such an expert on a previous case, he concluded there were
more cons than pros in presenting such expert testimony. He stated that an eyewitness
identification expert could hurt a case where there was a lengthy period of contact
between the witness and the suspect, there was no cross-cultural identification, and the
suspect possessed unusual or memorable characteristics. Because of these
considerations, he made a strategic decision that it would hurt [Briggs’] case to hire an
eyewitness expert.
[Briggs’] claim of ineffective assistance fails because he has not shown that his
counsel's performance was deficient. In determining whether counsel’s performance was
deficient, we accord great deference to the tactical decisions of counsel. We will not
second-guess the reasonable tactical decisions of trial counsel. “[W]here the record
shows that counsel's omissions resulted from an informed tactical choice within the range
of reasonable competence, the conviction must be affirmed.”
Trial counsel’s decision not to call an eyewitness identification expert was within
the range of reasonable competence. Even though the eyewitness victim was under the
influence at the time of his interaction with [Briggs] and was under the stress of the
situation during part of that interaction, the contact was prolonged and there was no
cross-racial identification. Trial counsel’s decision not to retain an eyewitness
identification expert was justified.
Briggs, 2013 WL 257068, at *8 (citations omitted)
The Ninth Circuit remains sensitive to the issue of retaining and consulting with defense
experts. See, e.g., Weeden v. Johnson, 854 F.3d 1063, 1070-71 (9th Cir. 2017) (holding that trial
counsel was deficient in failing to seek psychological evaluation about effect of petitioner’s
youth on her mental state); Richter v. Hickman, 578 F.3d 944, 953-54 (9th Cir. 2009) (en banc)
(trial counsel’s failure to consult an expert in blood evidence constituted ineffective assistance),
rev’d by Harrington v. Richter, 562 U.S. 86 (2011). The cases finding ineffective assistance
based on defense counsel’s failure to consult with an expert or offer expert testimony appear to
involve situations where the prospective defense expert testimony would: 1) exonerate the
defendant; 2) conflict with powerful expert testimony offered by the Government;
3) significantly weaken adverse Government expert testimony; and 4) aid in preparing defense
counsel’s cross-examination of the adverse Government expert testimony.
8
Upon independent review, the Court concludes that the California courts’ rejection of
Briggs’ claim was not unreasonable or contrary to clearly-established federal law. Defense
counsel provided a rational reason to believe that the omission was the result of a tactical
decision not subject to this Court’s review.
None of the situations outlined above, where a federal court rejected as unreasonable a
state court conclusion that trial counsel’s failure to consult or call an expert witness did not
violate Strickland, are applicable here. Moreover, the record shows that, even without the
proposed defense expert testimony, defense counsel was able to deftly and effectively crossexamine the prosecution’s witnesses as to the photographic lineup.
While it theoretically may have been helpful to Briggs to have additional evidence
attacking the reliability of the eyewitness identification, it is too speculative to believe that there
is a “reasonable probability sufficient to undermine confidence in the outcome” that the jury
would have come to a different conclusion if this now-proffered expert evidence had been
presented at trial. Harrington, 562 U.S. at 104 (“It is not enough ‘to show that the errors had
some conceivable effect on the outcome of the proceeding.’” (quoting Strickland, 466 U.S. at
693)). Moreover, the record fully supports defense counsel’s belief that the proposed expert
testimony would have caused more harm than good. Given the high bar required under
Strickland, and in light of the deference this Court must afford the state court’s decision, Briggs
fails to prove that counsel was deficient, or that he was prejudiced by counsel’s inaction. The
U.S. Supreme Court has recently affirmed the deference to be afforded a state court’s
determination:
In order for a state court’s decision to be an unreasonable application of this
Court’s case law, the ruling must be “objectively unreasonable, not merely wrong; even
9
clear error will not suffice.” Woods v. Donald, 575 U.S. ––––, ––––, 135 S. Ct. 1372,
1376, 191 L.Ed.2d 464 (2015) (per curiam ) (internal quotation marks omitted). In other
words, a litigant must “show that the state court’s ruling . . . was so lacking in
justification that there was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.” Ibid. (internal quotation marks
omitted). This is “meant to be” a difficult standard to meet. Harrington v. Richter, 562
U.S. 86, 102, 131 S. Ct. 770, 178 L.Ed.2d 624 (2011).
Virginia v. LeBlanc, 137 S. Ct. 1726, 1728 (2017).
Under these standards, the Court cannot find that the state court’s rejection of Briggs’
ineffective assistance claim unreasonably applies or contravenes federal law. He is not entitled
to relief on his ineffective assistance claim.
2.
Failure to subpoena certain witnesses
Briggs next contends that counsel was ineffective for failing to subpoena certain
witnesses at trial. The Court of Appeal considered and rejected this claim as follows:
[Briggs] asserts his trial counsel was ineffective because he did not subpoena
Devazia Turner and Turner’s mother, Penny Scott, for trial. One of the guns used in the
shooting was found in Turner’s possession in Sacramento. When Turner was
apprehended with the gun, he was in the company of Kenneth Jefferson. In one photo
lineup, Campbell said that Jefferson looked like one of the men who had attacked him.
Scott originally claimed Turner told her that he got the gun from Jefferson, although both
Turner and Scott later said the gun came from someone at a Sacramento light rail station.
At the new trial motion, [Briggs’s] trial counsel testified that he hired an
investigator to look into the gun. He testified that it was his opinion that pursuing the
investigation into the gun further might hurt [Briggs’] case. He stated that the
investigator interviewed both Scott and Turner, and that Turner claimed someone gave
him the gun at the light rail station in Sacramento. Scott backed up this story.
Defense counsel stated he saw it as a dead end issue at that point. He testified
that based upon the investigation he felt the circumstances of how the gun was found
would only hurt [Briggs’] case. Counsel’s decision not to subpoena these witnesses was
within the range of reasonable competence, and does not constitute ineffective assistance
of counsel.
Moreover, [Briggs] has failed to establish prejudice. There is no evidence that
Turner would have testified, since to do so would have implicated his Fifth Amendment
right against self-incrimination. Turner’s statements to his mother could not have come
in as inconsistent statements without Turner testifying.
10
Briggs, 2013 WL 257068, at *10-11.
The Court of Appeal’s rejection of this claim is both reasonable and fully supported by
the record. Briggs does not provide evidence rebutting counsel’s testimony that he investigated
the issue of the gun and made the tactical decision not to call Turner or his mother as witnesses
in light of their statements to the investigator. Moreover, Briggs did not show on direct appeal,
and has not shown here, that Turner would have been willing to testify, what his testimony
would have been, or that the testimony would have been sufficient to create a reasonable doubt
as to Briggs’ guilt. See Wildman v. Johnson, 261 F.3d 832, 839 (9th Cir. 2001) (speculation that
a witness would provide favorable testimony on petitioner’s behalf is insufficient to establish
Strickland prejudice); Grisby v. Blodgett, 130 F.3d 365, 373 (9th Cir. 1997). Briggs thus fails to
show that counsel was ineffective with respect to this claim.
3.
Failure to object to admission of evidence found in apartment 231
Briggs next avers that counsel was ineffective for not objecting to the admission of
objects recovered when officers searched apartment 231 incident to Briggs’ arrest there. The
Court of Appeal considered and rejected this claim as follows:
Detective Robert Faine testified that officers searched apartment 231 because they
had information that [Briggs] was staying there. When the officers knocked on the door
of apartment 231, the door was opened by a woman named Nicole Tyler, and [Briggs]
was standing at the back of the living room hallway near the bedroom. [Briggs] was
arrested in the bedroom. There were four people in the apartment at the time of the
arrest. [Briggs] was not the lessee of the apartment.
[Briggs] argues there was no evidence establishing that he lived in apartment 231,
or had actual or constructive possession of the items found there. He argues the items
had no relevance unless they belonged to him, and his trial counsel should have objected
to the evidence on that ground. He also argues his counsel should have objected to
Faine’s statement that he heard [Briggs] was staying in apartment 231 on hearsay
grounds.
[Briggs] relies heavily on People v. Johnson (1984) 158 Cal.App.3d 850, for the
proposition that the evidence found in apartment 231 was irrelevant because there was no
11
showing the evidence belonged to him. In that case, the defendant was convicted of
possessing phencyclidine (PCP) for sale. The defendant and several other people were
discovered in a house during a police raid. The defendant and another person were in the
kitchen, and police discovered a bottle of PCP in a hole in the ceiling with defendant’s
thumbprint. This being the sole evidence of possession, the court held it was insufficient
to support a conviction. However, the court did not hold that the evidence was
inadmissible.
Here, the possession conviction related to the cocaine base [Briggs] sold to
Batson on the day of the shooting. Whether [Briggs] had sufficient dominion and control
over the items in apartment 231 to possess them was not at issue. Instead, [Briggs’]
presence at the particular location in the apartment near the room where several items
indicative of drug sales were in plain view, had some tendency in reason to prove he was
involved in the sale of drugs. This in turn had some tendency in reason to prove he was
selling cocaine base on the day of the shooting. Evidence is relevant if it has “any
tendency in reason to prove or disprove any disputed fact that is of consequence to the
determination of the action.” (Evid. Code, § 210.) An objection based on relevance
would not have been justified, and defense counsel was not deficient in failing to make
such an objection.FN2
FN2. We acknowledge that the evidence of the small amount of marijuana
packaged for sale was minimally relevant and the .38–caliber bullets were
arguably not relevant to show [Briggs] was involved in the sale of drugs,
but conclude [Briggs] has failed to establish he was prejudiced by the
admission of such evidence, and we deny his ineffective assistance of
counsel claim regarding such evidence on that ground.
As to the hearsay statement that defendant was “staying” at apartment 231, we
cannot say on this record that trial counsel was deficient in failing to object. Had counsel
made the objection, the prosecution may well have introduced evidence from the
out-of-court declarant, whose testimony may have been more harmful to [Briggs]. Such
an objection also would not have prevented the detective from describing the arrest and
introducing the evidence discovered in the search, and may have drawn undue attention
to the detective’s brief mention that he heard [Briggs] was staying at the apartment.
Briggs, 2013 WL 257068, at *9-10.
Briggs fares no better on federal habeas review. As the Court of Appeal thoroughly
explained, the vast majority of the physical evidence was clearly admissible under state law.
Accordingly, counsel cannot be faulted for failing to make a meritless objection to it. See Sexton
v. Cozner, 679 F.3d 1150, 1157 (9th Cir. 2012) (“Counsel is not necessarily ineffective for
12
failing to raise even a nonfrivolous claim, so clearly we cannot hold counsel ineffective for
failing to raise a claim that is meritless.” (internal citation omitted)); Rupe v. Wood, 93 F.3d
1434, 1444-45 (9th Cir. 1996) (defense counsel’s failure to raise a meritless argument or to take
a futile action does not constitute ineffective assistance of counsel). The Court of Appeal noted
that some of the evidence was only “minimally relevant” or “arguably not relevant,” Briggs,
2013 WL 257068, at *9 n.2, but the court reasonably concluded that Briggs failed to establish
prejudice by the admission of those items. With respect to the hearsay statement, the Court of
Appeal reasonably concluded that counsel may have made a tactical decision to not object to the
statement. Briggs is thus not entitled to relief on any argument advanced in support of his
ineffective assistance claims.
4.
Failure to object to admission of evidence found in apartment 222
Similarly, Briggs contends that counsel was ineffective for not objecting to evidence
found at his mother’s house. However, as the Court of Appeal reasonably concluded:
As with the items found in apartment 231, the issue was not whether there was
sufficient evidence to show the items found there were [Briggs’]. Instead, [Briggs] had
ties to this apartment, as evidenced by the fact that his mother was found in the
apartment, as was a receipt with his name on it. Also in the apartment was a scale
associated with drug sales. The evidence was relevant, both for its tendency to show he
was engaged in drug sales, and to show [Briggs’] connection to the apartment building
where the shooting took place. The items were relevant to prove the identity of the
perpetrator. Defense counsel was not required to make a baseless objection.
Briggs, 2013 WL 257068, at *10.
The Court of Appeal’s rejection of this claim is similarly reasonable and fully supported
by the record. Briggs is thus not entitled to relief on this claim.
B.
Batson/Wheeler Claim (Ground 5)
13
Briggs additionally argues the prosecution impermissibly used a peremptory challenge to
excuse from the jury pool two African-American potential jurors. The Court of Appeal laid out
the following facts underlying this claim:
Defense counsel cited two potential jurors excused by the prosecutor. The first
was T.A. Defense counsel made the following comments about T.A.: “She was another
African American female in my opinion. [¶] . . . [T.A.] was employed, eligibility worker,
Alameda County. Said she could be fair. She answered all the questions properly. She
did have a brother who was convicted of possession for sales. She said she could put that
behind her. We kept her on the panel quite sometime [sic ], and then for no apparent
reason, as far as I can understand, she was excused.”
Defense counsel made the following comments about L.D.: “I believe that [L.D.]
. . . she had [a] Hispanic surname but to me she was clearly black, African American.
That was my take on it, Your Honor. [¶] . . . [¶] . . . She was a supervisor at Home
Depot, supervised three hundred people, had three girls, answered all questions properly.
Was left on the jury quite some time. And for no apparent reason as far as I can tell, she
was excused.”
Defense counsel also stated that [Briggs] and the victim in the case were
African–American. The prosecutor referred to the fact that two other African–American
prospective jurors had been excused for cause. One was excused for cause because she
was breast-feeding. One was excused for cause because defense counsel had previously
represented the man’s son. Defense counsel stated that as of the time of the motion there
were no other African–Americans on the jury. Following the motion, one more juror and
three alternate jurors were seated. The record does not indicate their race.
The trial court first asked the prosecutor if he agreed that L.D. was
African–American, stating that it did not appear to the court that she was. The
prosecutor, who was African–American, stated that L.D. “did not in any way appear
African American. Her complexion is [a] little bit darker than some individuals who
happen to be Hispanic. She certainly seems to [fall] within the [ambit] of that social,
racial group, however you classify that.”
The prosecutor then proceeded to justify his challenges to the two potential jurors.
He stated that the primary reason he excused T.A. was that her brother had been
convicted for the sale of drugs, and he was dissatisfied with her answers when she was
questioned about it. When asked, she stated: “He did it. He got caught.” T.A. was one
of the first potential jurors questioned, and as voir dire went along, the prosecutor stated
he thought other jurors would be better, strategically, for the prosecution.
As to L.D., the prosecutor stated that her work was a positive factor in her favor,
but that she had three young children and appeared to be under the age of 30. The
prosecutor stated: “I didn't feel she had enough life experience based on what she
outlined to be able to be on this particular jury. [¶] My preference in regards to jurors
are individuals who are above the age of 35. If they’re above the age of 35, I generally
feel they have enough life experience to be able to, number one, understand and pick up
14
on credibility issues which come up on the stand. So based on that, I felt there was a
superior juror. [¶] . . . [¶] Each of the individuals [who were put in L.D.’s chair] were all
older than [L.D.] That’s the primary reason I moved her down. It was a question of
strategy. There was no other rationale for doing so.”
Briggs, 2013 WL 257068, at *2-3.
The Equal Protection Clause prohibits purposeful racial discrimination in the selection of
the jury. Batson, 476 U.S. at 86. In Batson, the Supreme Court outlined a three-step process for
evaluating claims that a prosecutor has used peremptory challenges in a manner violating the
Equal Protection Clause: 1) a defendant raising a Batson claim must establish a prima facie case
of discrimination; 2) once a prima facie case of discrimination is established, the burden of
offering race-neutral reasons for the strikes shifts to the prosecutor; 3) after the prosecutor offers
race-neutral reasons, the trial court has the duty to determine if the defendant has established
purposeful discrimination. Paulino v. Harrison, 542 F.3d 692, 699 (9th Cir. 2008) (citing
Batson, 476 U.S. at 98).
A defendant’s burden to establish a prima facie case at the first step and the prosecutor’s
burden to provide race- (or ethnic-) neutral reasons for the challenge at the second step are
burdens of going forward with the evidence, while the defendant’s burden at the third step is a
true burden of persuasion to convince the court that the challenge was motivated at least in part
by some prohibited group bias or prejudice. The ultimate burden of persuasion never shifts.
Batson, 476 U.S. at 93; see Purkett v. Elem, 514 U.S. 765, 768 (1995).
On federal habeas review, AEDPA “imposes a highly deferential standard for evaluating
state-court rulings” regarding Batson claims that “demands that state-court decisions be given
the benefit of the doubt.” Felkner v. Jackson, 131 S. Ct. 1305, 1307 (2011) (quoting Renico v.
Lett, 559 U.S. 766, 773 (2010)). This “standard is doubly deferential: unless the state appellate
15
court was objectively unreasonable in concluding that the trial court’s credibility determination
was supported by substantial evidence, we must uphold it.” Briggs v. Grounds, 682 F.3d 1165,
1170 (9th Cir. 2012).
1.
Juror L.D.
The Court of Appeal rejected Briggs’ Batson claim as to L.D. because Briggs “failed to
make a sufficient showing that L.D. was a member of the racial group he asserted the
prosecution was attempting to keep off the jury. Although defense counsel asserted that L.D.
was Black, she had a Hispanic surname, and both the court and the prosecutor disagreed that
L.D. was African–American.” Id. at *3. The Court of Appeal’s conclusion is neither contrary to
or an unreasonable application of federal law.3
2.
Juror T.A.
On direct appeal, Briggs argued that, because the trial court required the prosecutor to
state the reasons for his peremptory challenges, the question of whether Briggs established a
prima facie case as to T.A. was moot. See People v. Mills, 226 P.3d 276, 293-95 (Cal. 2010)
(where the trial court finds no prima facie case but permits the prosecutor to state her reasons
and accepts the credibility of the reasons there is a first stage/third stage hybrid, the rejection of
3
It is worth nothing that the Supreme Court has held that criminal defendants may
object to race-based peremptory challenges of jurors regardless of whether the defendant and the
excluded juror are of the same race. Powers v. Ohio, 499 U.S. 400, 415-16 (1991). In so doing,
however, the Court noted that it may be difficult to make a prima facie showing when the
potential juror and the defendant are of different races. Id. at 416. Here, Briggs did not make his
Batson motion with reference to all minority races, including those of Hispanic origin. The
defense motion was explicitly directed to the exclusion of African Americans from the jury, and
the record is devoid of any reference to whether there were other potential jurors of another
minority race. The Court of Appeal thus did not contravene Powers when it concluded that
Briggs failed to establish that L.D. was a member of the relevant class.
16
the prima facie case is moot, the reviewing court expresses no opinion on the presence of a
prima facie case and skips directly to the third stage and determines in light of the prosecutor’s
reasons whether defendant has proved intentional discrimination).4 The Court of Appeal
disagreed, concluding that the trial court determined that no prima facie case had been
established, and affirmed the trial court’s ruling on that ground. Briggs, 2013 WL 257068, at *4.
To establish a prima facie case of discrimination under Batson’s first step, the defendant
must show that: 1) the prospective juror is a member of a cognizable racial group; 2) the
prosecutor used a peremptory strike to remove the juror; and 3) the totality of the circumstances
raises an inference that the strike was on account of race. Batson, 476 U.S. at 96; Crittenden v.
Ayers, 624 F.3d 943, 955 (9th Cir. 2010). The prosecutor’s use of a peremptory strike to remove
the African American juror satisfies the first two prongs of the inquiry; the question here is
therefore whether the totality of the circumstances raises an inference that the strike was used on
account of race. A defendant satisfies the requirements of Batson’s first step by producing
4
More recently, the California Supreme Court rethought Mills and like cases and
concluded that where the trial court rules that there is no prima facie case but hears from the
prosecutor and finds the prosecutor’s race neutral reasons credible and denies a Batson challenge
at the third stage, an appellate court should nevertheless rule on the prima facie case. See People
v. Scott, 349 P.3d 1028, 1044-48 (Cal. 2015). Although Briggs’ appeal pre-dated Scott, the
Court of Appeal issued an opinion not inconsistent with the Supreme Court’s directive in that
case. The Court of Appeal explicitly rejected Briggs’ contention that the trial court declined to
address whether he had made a prima facie case: “Viewing the record as a whole and examining
the remarks of the trial court and the prosecutor in context, it is clear the trial court did not
require the prosecutor to state his reasons for challenging either juror. . . . Thus, nothing the
court did converted the Batson step-one analysis into a step-three analysis.” Briggs, 2013 WL
257068, at *4. The appellate court thus affirmed the trial court’s no prima facie case
determination. Id. This Court therefore reviews whether Briggs established a prima facie case
and affords AEDPA deference to the Court of Appeal’s determination that he did not. See
Tolbert v. Page, 182 F.3d 677, 682 (9th Cir. 1999) (en banc).
17
evidence sufficient to permit the trial judge to draw an inference that discrimination has
occurred. Johnson v. California, 545 U.S. 162, 170 (2005).
Here, the Court of Appeal relied on the correct legal standard—Batson—so the question
is whether the appellate court unreasonably applied that case. Reviewing the totality of
circumstances in this case does not raise an inference that discrimination has occurred. Although
an inference of discrimination may be found where the prosecutor strikes a large or
disproportionate number of panel members from the same racial group, Briggs does not make a
statistical argument and, as the Court of Appeal noted, could not do so given the small numbers
involved. See United States v. Collins, 551 F.3d 914, 921 (9th Cir. 2009) (“The lack of other
African-Americans in the jury pool renders mathematical trends and patterns meaningless.”);
Hargrove v. Pliler, 327 F. App’x 708, 709 (9th Cir. 2009) (rejecting step one of Batson claim
because it “hinges on a statistical argument involving very small numbers” that, “standing alone,
is insufficient to establish a prima facie case in light of the ample legitimate reasons in the record
for the prosecution’s challenge”).5 The Court of Appeal concluded:
We cannot infer improper discrimination from the record in this case where the
prosecution excused a single African–American juror, and there was an absence of other
5
While “a prima facie case does not require a pattern because ‘the Constitution
forbids striking even a single prospective juror for a discriminatory purpose,’” Collins, 551 F.3d.
at 919 (quoting United States v. Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir. 1994)), it is equally
clear that “the striking of one juror of a cognizable racial group does not by itself raise an
inference of discriminatory purpose,” Tolbert v. Gomez, 190 F.3d 985, 988 (9th Cir. 1999); see
also Crittenden, 624 F.3d at 955-57; Gonzales v. Brown, 585 F.3d 1202, 1206 (9th Cir. 2009).
Thus, if after an objection the trial court finds no prima facie case but asks the prosecutor to
disclose her reason and she were to say, “my reason should be obvious, the juror is AfricanAmerican,” the explanation would itself be sufficient to show a discriminatory motive without
further evidence of plan or comparative jury analysis. But in the absence of an admission or
other “smoking gun,” there must be some evidence to support an inference, and a single
challenge to a single juror standing alone cannot supply that evidence.
18
evidence that the juror was excused for a discriminatory purpose. That juror had a
brother who had been convicted of selling drugs—a charge that was also made against
[Briggs].
Finally, when there is a lack of motive to exercise challenges based on group bias
because race is not a factor in the case, courts have viewed this circumstance as a factor
cutting against a prima facie finding of discrimination. There is a lack of motive to
discriminate when, as here, the defendant and the victim are of the same race.
[Briggs] failed to establish a prima facie case of discrimination. Therefore, the
trial court properly denied the Wheeler/Batson motion.
Briggs, 2013 WL 257068, at *5 (citation omitted).
The Court of Appeal’s determination is both reasonable and fully supported by the
record. Nor is this decision contrary to Batson, and Briggs cites no other federal law, much less
authority from the U.S. Supreme Court, that this determination contravenes or unreasonably
applies. In sum, given the deference afforded to the Court of Appeal’s affirmance of the trial
court’s finding, this Court must conclude that the trial court did not err in finding that Briggs
failed to establish a prima facie showing of discrimination, and Briggs is not entitled to relief on
this ground.
C.
Evidentiary Hearing
Finally, Briggs requests an evidentiary hearing as to all claims. A district court may not
hold an evidentiary hearing on a claim for which a petitioner failed to develop a factual basis in
state court unless the petitioner shows that: (1) the claim relies either on (a) a new rule of
constitutional law that the Supreme Court has made retroactive to cases on collateral review, or
(b) a factual predicate that could not have been previously discovered through the exercise of
due diligence, and (2) the facts underlying the claim would be sufficient to establish by clear and
convincing evidence that, but for constitutional error, no reasonable fact finder would have
found the petitioner guilty of the underlying offense. 28 U.S.C. § 2254(e)(2).
19
Where the failure to develop the factual basis for the claim in the state court proceedings
is not attributable to the petitioner, to receive an evidentiary hearing, the petitioner must make a
colorable claim for relief and meet one of the factors set forth in Townsend v. Sain, 372 U.S. 293
(1963). Insyxiengmay v. Morgan, 403 F.3d 657, 670-71 (9th Cir. 2005). In Townsend, the
Supreme Court concluded that a federal habeas petitioner is entitled to an evidentiary hearing on
his factual allegations if: (1) the merits of the factual dispute were not resolved in the state
hearing; (2) the state factual determination is not fairly supported by the record as a whole;
(3) the fact-finding procedure employed by the state court was not adequate to afford a full and
fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material
facts were not adequately developed at the state-court hearing; or (6) for any reason it appears
that the state trier of fact did not afford the habeas applicant a full and fair fact hearing. Id. at
670 (quoting Townsend, 372 U.S. at 313), overruled in part by Keeney v. Tamayo-Reyes, 504
U.S. 1 (1992), superseded by statute as stated in Williams v. Taylor, 529 U.S. 420 (2000).
As discussed above, Briggs has failed to assert a colorable claim for relief. See Bashor v.
Risley, 730 F.2d 1228, 1233 (9th Cir. 1984) (holding an evidentiary hearing is not required on
issues which can be resolved on the basis of the state court record). Because he does not cite to
new laws or underlying facts that were not developed on the record before the state courts with
respect to this claim, he has also failed to satisfy his burden of proof under 28 U.S.C.
§ 2254(e)(2). Briggs’ request for an evidentiary hearing must therefore also be denied.
V. CONCLUSION AND ORDER
Briggs is not entitled to relief on any ground raised in his Petition.
20
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,
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 directed to enter judgment accordingly.
Dated: March 22, 2019.
/s/James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge
21
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