Campbell v. Ducart
Filing
36
MEMORANDUM DECISION signed by Senior Judge James K. Singleton on 3/7/17: The Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus is DENIED. The Court declines to issue a Certificate of Appealability. (Kaminski, H)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
MARIO MONTEZ CAMPBELL,
No. 2:14-cv-01930-JKS
Petitioner,
MEMORANDUM DECISION
vs.
CLARK DUCART, Warden, Pelican Bay
State Prison,
Respondent.
Mario Montez Campbell, 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. Washington is in the custody of
the California Department of Corrections and Rehabilitation and incarcerated at Pelican Bay
State Prison. Respondent has answered, and Campbell has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
On direct appeal of his conviction, the California Court of Appeal laid out the following
facts underlying this case:
Remy M. was an adult male who knew [Campbell]. Remy lived in a household
with an adult female, Lynell D., with Lynell’s two children (ages two and five), and with
Lynell’s 15–year–old sister, Brandi D. Remy and [Campbell] gambled with dice. The
day before the home invasion, Remy won over $1,000 in a dice game, and this angered
[Campbell].
The next night, August 27, 2008, around midnight, Remy was on his balcony. He
saw [Campbell] and another man outside his home, asked them if they wanted to smoke
marijuana, and went into the house to get a lighter. [Campbell] and his accomplice
entered Remy’s house without invitation. [Campbell] had a gun. [Campbell] told his
cohort to take Lynell to look for a gun, but when she told the man there was no gun, he
threatened to hit her in the head with a bottle if she did not tell him where it was. The
man then “rampag[ed]” through Lynell’s room, taking about $2,000 and marijuana. The
accomplice then took Lynell to Brandi’s room to look for the gun, started “tearing all the
boxes down,” and woke Brandi up.
[Campbell] ordered Remy, Lynell and Brandi to remove all of their clothes. The
crime partners then tied the victims up with wire. Lynell and Brandi were tied as follows:
“We were both laying on our backs. And he starting tying up our feet first, then our arms
together. Then he connected the two so both of our arms and feet were up in the air.”
[Campbell] asked if Brandi was a virgin, asked his cohort “should we fuck?,” and
he and his cohort began kissing and rubbing Brandi and Lynell. Brandi began to cry.
[Campbell] put his fingers in Brandi’s anus three times and put his fingers in Lynell’s
vagina. [Campbell] also put his gun in Lynell’s mouth, saying the gun “will wipe all of
us out. Won’t leave no one alive.” When Lynell’s two-year-old child cried, [Campbell]
put the gun to the two-year-old’s head and told her to quit screaming or he would shoot
her.
[Campbell] also struck Remy on the head with the gun about eight times, “just
like every five minutes.” [Campbell] asked Remy, “Why you quitting the
dice”—apparently expressing anger that the dice game had ended with Remy ahead.
[Campbell] said the gun was a “Mac 11” and later said “if I set off one round . . .
this shit will blow up . . . this whole household.” [Campbell] said that if the victims
called the police, he would return and kill all of them. The crime partners took various
items, including money, marijuana and the telephone. As the men left, they told the
victims “not to get up for 15 minutes” or the men would come back and kill them.
Lynell managed to untie the others, and the family dressed, fled to a store to call
911, and signaled to a responding patrol car for help.
After the home invasion, [Campbell] called Lynell and threatened to kill the
family because they had called the police. He also called Remy and said “I heard you
called the police” and “If you want to do it like that, I’m going to [k]ill your whole
family.”
Then, regarding a subsequent incident, a probation officer testified that on
October 29, 2008, he found [Campbell] in a particular bedroom where drugs and a gun
were also found, and [Campbell] told the officer those items were his. Another probation
officer testified that he found “a nine-millimeter M–11” inside the wall of a closet of that
bedroom. He also found a white substance he thought was drugs and some marijuana in
that bedroom.
Sergeant Lisa Bowman, a detective with the sexual assault bureau, testified that
she listened to four telephone calls [Campbell] made to his girlfriend from jail. Two calls
were made on November 6, 2008, one call was made on November 7, 2008, and one call
was made on November 10, 2008. Recordings of the calls were played at trial. In one
portion of a call, [Campbell] mentioned the police matching DNA with a T-shirt he left at
Remy’s house after the dice game, and in another portion of a call, [Campbell] said he
would write a letter telling his girlfriend what to do, because he did not trust the phones.
[Campbell] and his girlfriend later discussed having [Campbell’s] brother Wayne “cash”
someone “out” in exchange for dropping the charges, or at least changing “statements,”
which would be good for [Campbell], but that the “bitch” had said it was not about the
money because “somebody had a gun to my baby’s head.”
The parties stipulated that [Campbell] had previously been convicted of a felony;
that the white substance found by the probation officer was cocaine base; and that DNA
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from the T-shirt at the house could have come from [Campbell], but could not have come
from Remy, Lynell or Brandi. The parties further stipulated that peace officers would
testify to particular inconsistent statements made by Brandi and Lynell, including that
Lynell said [Campbell’s] accomplice put his fingers in her vagina. Moreover, Remy was
impeached with convictions for misdemeanor domestic violence and felony possession of
marijuana for sale.
In closing argument, the defense emphasized the burden of proof, inconsistencies
or implausibilities in the testimony, and argued the victims were untruthful. The defense
conceded guilt on the gun and drug charges stemming from the search.
The jury found [Campbell] guilty of residential burglary ([Cal.] Pen. Code, §
459), robbery (three counts pertaining to Remy, Lynell & Brandi) (id., § 211), assault
with a firearm (three counts as to Remy, Lynell & the two-year-old) (id., § 245, subd.
(a)(2)), forcible sexual penetration (three counts as to Lynell, two counts as to Brandi)
(id., § 289, subd. (a)(1)), sexual battery upon a restrained person (Lynell) (id., § 243.4,
subd. (a)), false imprisonment by violence or menace (three counts as to Remy, Lynell &
Brandi) (id., § 236), attempting to dissuade a witness (Remy) (id., § 136.1, subd. (b)(2)),
possession by a felon of a firearm (two counts) (id., § 12021, subd. (a)(1)), and
possession of cocaine base (Health & Saf. Code, § 11350, subd. (a)). The jury also found
defendant personally used a firearm (Pen. Code, §§ 12022.5, subd. (a), 12022.53, subd.
(b)), and found true certain One Strike allegations (id., § 667.61, subds. (a), (e)(2), (e)(4)
& (e)(5)) . . . .
[Campbell] exercised his right of self-representation at sentencing. The trial court
sentenced [Campbell] to prison and characterized the sentence as a determinate term of
101 years 4 months, followed by an indeterminate term of 175 years to life. A two-year
sentence on a trailing probation violation matter (case No. 06F10787) was imposed
concurrently.
People v. Campbell, No. C063219, 2010 WL 5141842, at *1-3 (Cal. Ct. App. Dec. 17, 2010).
Through counsel, Campbell appealed his conviction, arguing that: 1) the evidence was
insufficient to sustain his conviction on three counts of sexual penetration committed against
Lynell; 2) the trial court erred in the unanimity instruction it gave pertaining to the two sexual
penetration counts involving Brandi and the three sexual penetration counts involving Lynell;
and 3) some of the firearm enhancements were wrongly attached to some offenses. The
prosecution conceded that Campbell was correct with respect to the firearm enhancements claim,
but other opposed the appeal. In a reasoned, unpublished opinion issued on December 17, 2010,
the Court of Appeal modified the abstract of judgment to correct the firearm enhancements but
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unanimously affirmed the judgment in all other respects. Campbell, 2010 WL 5141842, at *8.
Campbell petitioned for review in the California Supreme Court, raising the two claims he
unsuccessfully raised to the Court of Appeal. The petition for review was denied without
comment on March 2, 2011.
Campbell then filed in the California Superior Court a pro se petition for habeas relief.
In that petition, he argued that: 1) the prosecutor committed misconduct in summation by
“indirectly mention[ing]” Campbell’s failure to testify, improperly vouching for witnesses’
credibility, and offering personal opinions; and 2) he discovered new evidence that established
that the DNA evidence used to convict him was false. On February 18, 2014, the superior court
issued a reasoned, unpublished opinion denying Campbell’s claims on the merits.
Again proceeding pro se, Campbell filed an additional habeas petition in the Court of
Appeal. In that petition, he again raised the prosecutorial misconduct and newly-discovered
evidence claims previously raised to the Superior Court. He raised additional claims alleging
that trial counsel was ineffective for a variety of reasons, the evidence was insufficient to sustain
a number of his convictions, and the jury was improperly influenced during his trial. The Court
of Appeal summarily denied the petition on March 27, 2014. Campbell raised the same claims
in a pro se habeas petition to the California Supreme Court, which was likewise denied without
comment on July 16, 2014.
Campbell then timely filed a pro se Petition for a Writ of Habeas Corpus to this Court on
August 18, 2014. See 28 U.S.C. § 2244(d)(1)(A).
II. GROUNDS/CLAIMS
4
In his pro se Petition before this Court, Campbell argues that: 1) the prosecutor
committed misconduct during summation by indirectly mentioning Campbell’s failure to testify,
vouching for witness credibility, and offering his personal opinions; 2) a revised DNA report
constitutes newly-discovered evidence establishing that the DNA evidence used to convict
Campbell was false; 3) counsel was ineffective for stipulating to the admission of police officer
statements rather than calling the officers to testify; 4) counsel was ineffective for failing to
investigate potential witnesses; 5) counsel was ineffective for failing to object to erroneous jury
instructions; 6) counsel was ineffective for failing to request the removal of jurors who had been
subjected to outside influences during trial; 7) counsel was ineffective with respect to his crossexamination of witnesses; 8) appellate counsel was ineffective for failing to raise Campbell’s
prosecutorial misconduct, judicial bias, and juror bias claims; 9) he was denied his right to a fair
trial when three jurors were subject to outside influences during trial; 10) the trial judge was
biased against him and made improper statements during cross-examination and allowed the
prosecutor to make improper statements as well; 11) he was denied his right to counsel of
choice; and 12) the trial court erred and improperly shifted the burden to the defense in its jury
unanimity instruction.
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,”
5
§ 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
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).
6
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)). 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.
Prosecutorial Misconduct (Grounds 1 and 2)
Campbell first argues that the prosecutor committed misconduct at several times during
closing and rebuttal arguments and by relying on false evidence. To successfully raise a claim
cognizable on habeas review based on a prosecutor’s comments at trial, a petitioner must
demonstrate that the prosecutor’s comments “‘so infected the trial with unfairness as to make the
resulting conviction a denial of due process.’” Darden v. Wainwright, 477 U.S. 168, 181 (1986)
(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). Under this standard, only
egregious prosecutorial misconduct can give rise to a constitutional claim. See Duckett v.
Godinez, 67 F.3d 734, 743 (9th Cir. 1995). A prosecutor’s comments in summation constitute
grounds for reversal only when the remarks caused actual prejudice. Shaw v. Terhune, 380 F.3d
473, 478 (9th Cir. 2004) (applying harmless error test to claim of prosecutorial misconduct in
summation).
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1.
Improper statements
Campbell alleges that the prosecutor made statements that improperly appealed to the
jury’s emotions, vouched for a witness’s credibility, and commented on Campbell’s failure to
testify. As an initial matter, Respondent urges that this improper-comment claim should be
dismissed as procedurally barred because the state superior court, in the last reasoned decision,
denied the claims with a citation to In re Dixon, 264 P.2d 513, 514 (Cal. 1953), which indicates
that the state court found those claims to be barred because they could have been, but were not,
raised on direct appeal. Federal courts “will not review a question of federal law decided by a
state court if the decision of that court rests on a state law ground that is independent of the
federal question and adequate to support the judgment.” Coleman v. Thompson, 501 U.S. 722,
729 (1991). The Ninth Circuit has not explicitly found that a Dixon default is an independent
and adequate state law ground, but it has indicated that it is likely to do so with respect to the
time period at issue here. See Bennett v. Mueller, 322 F.3d 573, 580-86 (9th Cir. 2003)
(suggesting in dicta that Dixon rule would constitute an independent and adequate state-law
ground when applied after the California Supreme Court’s 1998 decision in In re Robbins, 959
P.2d 311 (Cal. 1998)); see also Flores v. Roe, 228 F. App’x 690, 691 (9th Cir. 2007)1 (finding
claim procedurally barred based on Dixon bar); cf. Park v. California, 202 F.3d 1146, 1152-53
(9th Cir. 2000) (holding that Dixon bar was not independent state law ground prior to Robbins).
Some courts in this district have accordingly concluded that habeas review is foreclosed when
the petitioner has failed to place the adequacy of the Dixon rule at issue and has not shown cause
and prejudice or that a miscarriage of justice would result if the claim were not heard. See, e.g.,
1
Cited for persuasive value pursuant to Ninth Circuit Rule 36-3.
8
Stribling v. Grounds, No. 12-cv-3084, 2013 WL 5817668, at *4-5 (E.D. Cal. Oct. 29, 2013);
Cantrell v. Evans, No. 07-cv-1440, 2010 WL 1170063, at *13-14 (E.D. Cal. Mar. 24, 2010).
In any event, Campbell’s arguments are without merit. With respect to his claim that the
prosecutor impermissibly stated to the jury that Campbell had been “undercharged” in light of
the offenses he had actually committed, the victims testified at trial that Campbell had committed
more acts of sexual penetration than which he had been charged. Given that the prosecutor was
thus commenting on the evidence presented at trial, Campbell cannot show that the
“undercharged” comment infected his trial with unfairness. Likewise, the prosecutor’s comment
that his “heart was breaking” did not deprive him of a fair trial. See Darden, 477 U.S. at 183
(holding that the prosecutor’s remarks during closing, which included calling the defendant an
“animal,” labeling the crime as “the work of an animal,” and arguing that the defendant should
not be let out of his cell without “a leash,” did not render the defendant’s trial fundamentally
unfair). Moreover, although Campbell faults the prosecutor for arguing to the jury that the
victims appeared to be scared when testifying, it is permissible for an attorney to infer from the
evidence presented at trial that a witness is intimidated or fearful of testifying against a criminal
defendant. See United States v. Bracy, 67 F.3d 1421, 1431 (9th Cir. 1995); see also King v.
Schriro, 537 F.3d 1062, 1066, 1070-71 (9th Cir. 2008) (denying prosecutorial misconduct claim
where the prosecutor remarked that a witness was “scared to death” about testifying where it was
“plain from [the witness’s] own testimony that she was scared of something”).
Nor can Campbell show that the prosecutor improperly vouched for Brandi’s credibility.
“Vouching consists of placing the prestige of the government behind a witness through personal
assurances of the witness’s veracity, or suggesting that information not presented to the jury
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supports the witness’s testimony.” United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir.
1993); see also Lawn v. United States, 355 U.S. 339, 359 n.15 (1958); Berger v. United States,
295 U.S. 78, 86-88 (1935). Such misconduct poses two dangers: it may lead the jury to convict
on the basis of evidence not presented, and it carries with it the imprimatur of the government.
United States v. Young, 470 U.S. 1, 18-19 (1985). An independent review of the record reveals
that the prosecutor did not use the prestige of the government, or suggest he was privy to
information withheld from the jury that supported or discredited Brandi’s testimony. Rather, the
prosecutor attempted to persuade the jury that Brandi was telling the truth. Ultimately, the
prosecutor’s arguments were permissible comments based on the state of the evidence presented
at trial. See Duckett v. Godinez, 67 F.3d 734, 742 (9th Cir. 1995) (permissible for prosecutor to
argue credibility of witness based on the evidence presented at trial).
Finally, Campbell cannot show that the prosecutor’s comments created an unacceptable
risk that the jury convicted him in part because he did not testify, in violation of Campbell’s
Fifth Amendment right against self-incrimination. The Fifth Amendment prohibits both the
prosecutor and the trial court from commenting on a defendant’s failure to testify. Griffin v.
California, 380 U.S. 609 (1965). However, a prosecutor may comment on the state of the
evidence regarding a matter at trial so long as she refrains from commenting on the defendant’s
failure to testify. Lockett v. Ohio, 438 U.S. 586, 595 (1978) (prosecutor’s comment that the
government’s evidence had been “unrefuted” and “uncontradicted” throughout the trial was not a
direct comment on defendant’s failure to testify); Cook v. Schriro, 538 F.3d 1000, 1020 (9th Cir.
2008) (holding that prosecutor’s comment that defendant had never told his cellmate where he
was when the offense was committed as challenging credibility of the cellmate’s testimony
10
concerning defendant’s alibi defense, rather than directly commenting on defendant’s failure to
testify). Here, as the superior court reasonably concluded when rejecting this argument on
habeas review, “[w]hen read in context, it appears that the prosecutor was referring to the first
time the defense presented an alternate theory about who committed the crime, not about
petitioner’s decision not to testify.” Additionally, any alleged Griffin error was harmless under
Brecht v. Abrahamson, 507 U.S. 619 (1993). A Griffin error is harmful “where such comment is
extensive, where an inference of guilt from silence is stressed to the jury as a basis for the
conviction, and where there is evidence that could have supported acquittal.” Hovey v. Ayers,
458 F.3d 892, 912 (9th Cir. 2006). Here, the challenged comments were brief, the prosecutor did
not stress, or even say, that the jury could infer guilt from Campbell’s failure to testify, and the
evidence against him was overwhelming.2 See id. (any Griffin error harmless where challenged
comments were isolated comments and minimal in comparison with the weight of the evidence).
Furthermore, the court also instructed the jury that the statements of counsel were not evidence,
that Campbell had a constitutional right not to testify, and that the jury could not consider his
failure to testify “for any reason at all” or discuss it in deliberations. Id. at 913 (Griffin error
harmless where, among other things, trial court instructed jury that statements of counsel were
2
Other courts have admonished that harmless error review should not be confused
with the sufficiency of the evidence inquiry required under Jackson v. Virginia, 443 U.S. 307,
324 (1979). See, e.g., Jensen v. Clements, 800 F.3d 892, 902 (7th Cir. Sept. 8, 2015) (“Time and
time again, the Supreme Court has emphasized that a harmless-error inquiry is not the same as a
review for whether there was sufficient evidence at trial to support a verdict.”). The Court’s
reliance on the overwhelming evidence against Campbell in finding any error harmless does not
simply focus on the sufficiency of the other evidence, but rather properly “look[s] at the
influence the improperly admitted [evidence] had on the verdict,” in light of a “host of factors,”
including the overall strength of the prosecution’s case. Id. at 904 (citations omitted).
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not evidence). Accordingly, Campbell is not entitled to relief on any argument advanced in
support of this prosecutorial misconduct claim.
2.
Reliance on false evidence
Campbell also claims that the prosecutor relied on false evidence in securing his
conviction. The record indicates that a former DNA report included Campbell as a possible
contributor to DNA found on a white t-shirt collected from the apartment complex where Remy
and Campbell played the dice game, and the parties stipulated to that fact. About three years
after judgment was imposed against Campbell, a revised DNA report based on revisions to the
Interpretational Guidelines and the Statistical Guidelines within the Technical Procedures of the
DNA Manual was issued that expressly stated that no inclusions could be made as to possible
contributors to the sample.
When a prosecutor obtains a conviction by the use of testimony or evidence that he
knows or should know is false, the conviction must be set aside if there is any reasonable
likelihood that the testimony could have affected the judgment of the jury. See United States v.
Agurs, 427 U.S. 97, 103 (1976); Napue v. Illinois, 360 U.S. 264, 269 (1959) (same result obtains
when State, although not soliciting false evidence, allows it to go uncorrected when it appears).
To prevail on a claim of prosecutorial misconduct for use of false witness testimony or evidence,
a petitioner must show that (1) the testimony or evidence was actually false, (2) the prosecution
knew or should have known that the testimony or evidence was false, and (3) the false testimony
or evidence was material. Henry v. Ryan, 720 F.3d 1073, 1084 (9th Cir. 2013); see also Hayes v.
Brown, 399 F.3d 972, 984 (9th Cir. 2005) (prosecutor’s action in presenting false evidence to the
jury and by failing to correct the record violated petitioner’s rights).
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Here, however, Campbell provides no reason to conclude that the prosecutor knew or
should have known that, based on revisions to the DNA Manual, Campbell could not be included
as a possible contributor to the DNA sample. Moreover, Campbell fails to show that the
evidence was material because the revised report does not conclusively exonerate him or
preclude any possibility of his guilt. Similarly, the prosecutor used the DNA evidence and
stipulation to argue that Campbell had been at the apartment complex the day before the attack;
it was not used to establish that he broke into the apartment the next day. Rather, the victims
testified that Campbell entered their home, tied them up, sexually assaulted and beat them, and
stole their property, and Campbell made several incriminating statements to his girlfriend during
jail phone calls. It is thus not likely that the proceedings would have been different if the jury
had been informed that Campbell could not be definitively included, but not excluded, as a
contributor to the DNA found on the shirt. Campbell is therefore not entitled to relief on this
claim.
B.
Freestanding Ineffective Assistance of Counsel Claims (Grounds 3, 4, 7, 8)
Campbell next raises a number of ineffective assistance of counsel claims. 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.
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
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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, Campbell must show that defense 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.
Trial counsel
Campbell first faults trial counsel for stipulating to testimony that two officers would
have given if they had been called as witnesses rather than calling those officers to testify. The
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stipulations, which were read into evidence during the defense case, stated that the officers
interviewed Brandi and Lynnel and took several statements from those victims that were
inconsistent with their trial testimony. The Court notes, however, that a trial counsel’s decision
to enter into a stipulation involves a matter of trial strategy, and disagreement about trial tactics
cannot from the basis for a claim of ineffective assistance of counsel. See Strickland, 466 U.S. at
688; People of Territory of Guam v. Santos, 741 F.2d 1167, 1169 (9th Cir. 1984). Moreover,
Campbell fails to demonstrate that counsel was ineffective for so stipulating because he does not
provide evidence suggesting that the officers’ live testimony would have benefitted his case
more than the stipulated evidence. For the same reason, he fails to show that he suffered
prejudice as a result of the stipulations.3
Campbell next alleges that trial counsel was deficient for failing to find and interview
potential witnesses and for failing to interview the prosecution’s witnesses. As he did in his
habeas petitions to the state courts, however, Campbell offers only conclusory assertions,
unsupported by any competent evidence such as a declaration from trial counsel, in support of
his claim that trial counsel failed to adequately investigate his defense. Likewise, Campbell does
not name any witnesses he believes should have been called or point to any specific evidence
that he feels was overlooked. The record likewise does not indicate that trial counsel’s
3
With respect to Campbell’s claim that his trial counsel’s stipulations constituted
ineffective assistance of counsel, the Ninth Circuit has confirmed that Strickland, which requires
showing that counsel’s deficient performance prejudiced defense, rather than United States v.
Cronic, 466 U.S. 648, 659-60 (1984), which allows for presumption of prejudice, governs a
federal court’s assessment of a habeas petitioner’s ineffective assistance claim arising from
defense counsel’s stipulations where, as here, defense counsel’s performance did not reveal “a
complete failure to test the State’s case.” See Allerdice v. Ryan, 395 F. App’x 449, 451 (9th Cir.
2010).
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investigation was inadequate in any way. Because Campbell has failed to meet his burden of
proof on habeas, he is not entitled to relief, and his ineffective assistance of counsel claim is
rejected on that basis. See Bragg v. Galaza, 242 F.3d 1082, 1088 (9th Cir. 2001) (finding that
mere speculation that witness might have given helpful information if interviewed insufficient to
establish ineffective assistance of counsel); Dows v. Wood, 211 F.3d 480, 486 (9th Cir. 2000)
(rejecting ineffective-assistance-of-counsel claim based on counsel’s failure to interview or call
alibi witness because petitioner provided “no evidence that this witness would have provided
helpful testimony for the defense”); see also Turner v. Calderon, 281 F.3d 851, 881 (9th Cir.
2002) (“self-serving statement” insufficient to raise claim for relief).
Similarly, Campbell asserts that counsel should have requested an instruction on a lesserincluded offense to burglary, but he does not identify the lesser-included offense for which trial
counsel should have requested an instruction or point to evidence adduced at trial that would
have warranted such instruction. Because he fails to show that trial counsel should have
requested a lesser-included instruction, Campbell fails to show that trial counsel was deficient in
that regard.
Finally, Campbell contends that counsel performed an inadequate cross-examination of
Sheriff’s Deputy Sergeant Bowman. As Campbell notes, trial counsel asked Bowman during the
preliminary hearing about statements the victims had made to other officers by asking her to read
the victims’ statements from reports but did not ask those same questions at trial. According to
Campbell, counsel should have asked those questions at trial to show that the victim’s pre-trial
statements were inconsistent with their trial testimony. However, because Bowman did not hear
the victim’s pre-trial statements, her testimony as to them would have constituted inadmissible
16
hearsay. Instead, counsel ensured that the pre-trial statements would be admitted by introducing
stipulations as what the victims told officers after the incident. Campbell thus fails to show that
counsel’s actions were ineffective.
2.
Appellate counsel
Campbell further argues that his appellate counsel was ineffective for failing to raise on
direct appeal the claims he has raised in this Petition. But, as discussed throughout this opinion,
this Court has thoroughly considered and rejected these claims. Appellate counsel cannot be
faulted for failing to raise meritless claims. See Jones v. Barnes, 463 U.S. 745, 751-52 (1983)
(appellate counsel does not have an obligation to raise every nonfrivolous argument); Turner,
281 F.3d at 872 (“A failure to raise untenable issues on appeal does not fall below the Strickland
standard.”). Accordingly, Campbell is not entitled to relief on any of his ineffective assistance of
counsel claims.
C.
Jury Tampering Claim/Ineffective Assistance of Counsel (Grounds 6, 9)
Campbell next claims that his rights to due process and a fair trial were violated by an
improper influence on the jury. The Sixth Amendment right to a jury trial “guarantees to the
criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366
U.S. 717, 722 (1961). Due process requires that the defendant be tried by “a jury capable and
willing to decide the case solely on the evidence before it.” Smith v. Phillips, 455 U.S. 209, 217
(1982); Bayramoglu v. Estelle, 806 F.2d 880, 887 (9th Cir. 1986) (“Jurors have a duty to
consider only the evidence which is presented to them in open court.”). A defendant is denied
the right to an impartial jury if even one juror is biased or prejudiced. Fields v. Woodford, 309
17
F.3d 1095, 1103 (9th Cir.), amended, 315 F.3d 1062 (9th Cir. 2002); Dyer v. Calderon, 151 F.3d
970, 973 (9th Cir. 1998) (en banc).
The introduction of prejudicial extraneous influences into the jury room constitutes
misconduct which may result in the reversal of a conviction. Parker v. Gladden, 385 U.S. 363,
364-65 (1966). “In the constitutional sense, trial by jury in a criminal case necessarily implies at
the very least that the ‘evidence developed’ against a defendant shall come from the witness
stand in a public courtroom where there is full judicial protection of the defendant’s right of
confrontation, of cross-examination, and of counsel.” Turner v. Louisiana, 379 U.S. 466, 472-73
(1965); see also Estrada v. Scribner, 512 F.3d 1227, 1238 (9th Cir. 2008) (“The Sixth
Amendment guarantee of a trial by jury requires the jury verdict to be based on the evidence
produced at trial.” (citing Jeffries v. Wood, 114 F.3d 1484, 1490 (9th Cir. 1997) (en banc),
overruled on other grounds by Gonzalez v. Arizona, 677 F.3d 383, 389 n.4 (9th Cir. 2012) (en
banc))). Thus, the Ninth Circuit has “consistently recognized that the Sixth Amendment
prohibits jurors from introducing matters into the deliberations not present during the trial.”
Fields v. Brown, 503 F.3d 755, 793 (9th Cir. 2007); see Gibson v. Clanon, 633 F.2d 851, 854
(9th Cir. 1980) (explaining that a jury’s consideration of extrinsic material is a constitutional
violation). There is a potential for prejudice when a juror “interjects into deliberations ‘objective
extrinsic facts’ regarding the accused because that juror becomes an unsworn witness who is not
subject to either confrontation or cross-examination.” Mancuso v. Olivarez, 292 F.3d 939, 950
(9th Cir. 2002) (citation omitted).
No bright line exists for determining whether a petitioner has suffered prejudice from
juror misconduct; therefore, reviewing courts “place great weight on the nature of the extraneous
18
information that has been introduced into deliberations.” Id. (citation omitted). “The inquiry
into a jury’s consideration of extrinsic evidence does not end at whether misconduct occurred;
upon a finding of misconduct, a rebuttable presumption of prejudice applies.” Tong Xiong v.
Felker, 681 F.3d 1067, 1077 (9th Cir. 2012). In the case of an allegation of juror misconduct, “a
post-trial hearing is adequate to discover whether [the defendant] was prejudiced” by that alleged
misconduct. Rushen v. Spain, 464 U.S. 114, 119 at n.3 (1983); see also Smith, 455 U.S. at 218
(upholding post-trial hearing as an adequate remedy to determine prejudicial effect of juror
misconduct). However, such a hearing is not constitutionally required unless a sufficiently
strong showing of misconduct has been made. See generally Tanner v. United States, 483 U.S.
107, 126 (1987). This standard recognizes that a criminal defendant’s Sixth Amendment
interests are already adequately protected by several aspects of the trial process, including voir
dire, observation during trial by the court, counsel, and courtroom personnel, and observation by
fellow jurors. Id. at 127.
Thus, clearly established Supreme Court precedent does “not stand for the proposition
that any time evidence of juror bias comes to light, due process requires the trial court to
question the jurors alleged to have bias.” Sims v. Rowland, 414 F.3d 1148, 1155 (9th Cir. 2005).
Rather, Supreme Court precedent “provide[s] a ‘flexible rule.’” Id. The Ninth Circuit held that
this “elasticity” is reflected in its own cases interpreting the Due Process Clause, which
uniformly hold that:
a federal court is not required to hold a hearing in order to comply with due process, but
should “consider the content of the allegations, the seriousness of the alleged misconduct
or bias, and the credibility of the source” when determining whether a hearing is
required.
Id. (citation omitted).
19
Due process thus “forbids a trial judge from remaining idle in the face of evidence”
indicating probable juror bias or misconduct, but there is no bright-line rule requiring a fullfledged hearing in every case. Id. at 1156. Here, the record reflects that, during trial, the court
noted on the record that a juror told the bailiff that a couple of the jurors were in the women’s
restroom when they heard a person crying in the stall say “he touched my sister.” The court
called both of the jurors into the courtroom individually. Both of the jurors stated that they heard
the comment but did not recognize the voice.4 The court also questioned an alternate juror who
had been in the bathroom, but she stated that she only heard crying and did not hear the
comment. The court admonished each of the jurors to not consider the incident for any purpose
and to not relay what had happened to the other jurors.
The record therefore supports the state court’s conclusion that the bathroom incident did
not cause the relevant jurors to become impartial. The episode was brief and the jurors did not
indicate that they were unable to disregard it. There is no constitutional requirement, and no
decided case of the United States Supreme Court, requiring a trial court to conduct any
investigation into juror misconduct or tampering unless sufficient evidence has been
demonstrated that actual juror misconduct may exist. In this case, misconduct was not
established before the trial court, so the court’s brief inquiry to the affected jurors was sufficient
to dispel any concern of jury bias. Accordingly, Campbell has not shown that he was denied of
“a jury capable and willing to decide the case solely on the evidence before it . . . .” Phillips,
455 U.S. at 217. Thus, habeas relief is not warranted as to his jury tampering claim. And
4
While neither juror associated the person in the restroom stall with a witness at
trial, extrinsic evidence from a court victim counselor (given outside the presence of the jurors)
indicated that the person in the restroom was Lynell.
20
because Campbell fails to show that he was deprived of an impartial jury, he likewise fails to
show that counsel was deficient for not requesting the removal of the affected jurors on that
basis. 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). Campbell is therefore not entitled to relief on either of these grounds.
D.
Judicial Bias/Participation (Ground 10)
Campbell additionally alleges that the trial judge committed judicial misconduct when he
interjected himself during defense counsel’s questioning of a victim. According to Campbell,
the judge’s statements informed the jury that the victim’s testimony was what “really happened.”
However, a review of the record reflects that the judge’s statements were not improper because
they were impartial and did not comment upon the witness’s credibility. Rather, the statements
were intended to clarify defense counsel’s questions: the court clarified that defense counsel was
asking whether the witness recalled making her prior statement to law enforcement, not whether
her prior statement was accurate as to what happened.
Campbell similarly contends that the trial judge was biased against him. In support, he
notes that the trial court failed to sustain several objections defense counsel made during the
prosecutor’s closing arguments. Campbell’s conclusory statements are insufficient, however, to
demonstrate that the trial judge was personally biased against him, engaged in misconduct, or
otherwise deprived Campbell of a fundamentally fair proceeding. The Ninth Circuit has
repeatedly recognized that adverse rulings alone are insufficient to demonstrate judicial bias.
Larson v. Palmateer, 515 F.3d 1057, 1067 (9th Cir. 1995); Taylor v. Regents of the Univ. of Cal.,
993 F.2d 710, 712-13 (9th Cir. 1993); Davis v. Fendler, 650 F.2d 1154, 1163 (9th Cir. 1980).
21
Moreover, a review of the record as a whole does not reflect unfair prejudice or “a predisposition
. . . so extreme as to display clear inability to render fair judgment.” Liteky v. United States, 510
U.S. 540, 551 (1994). Campbell is therefore not entitled to relief on this ground.
E.
Denial of Counsel of Choice (Ground 11)
During trial, Campbell filed a Marsden5 motion to substitute counsel. The trial court held
a hearing and denied the motion.6 Campbell contends that the denial violated his right to
counsel.
The Sixth Amendment right to counsel guarantees to an accused the concomitant rights to
conflict-free representation and the effective assistance of counsel. See Wheat v. United States,
486 U.S. 153, 156 (1988); Strickland, 466 U.S. at 686. The denial of a Marsden motion may
implicate the Sixth Amendment right to counsel. Schell v. Witek, 218 F.3d 1017, 1023 (9th Cir.
2000) (en banc); Bland v. Cal. Dep’t of Corrs., 20 F.3d 1469, 1475-76 (9th Cir. 1994), overruled
on other grounds in Schell, 218 F.3d at 1025-26; Hudson v. Rushen, 686 F.2d 826, 828-29 (9th
Cir. 1982).
The Sixth Amendment right to counsel also includes a qualified right to retain counsel of
choice. See Schell, 218 F.3d at 1025 (citations omitted). However, an indigent defendant, while
entitled to appointed counsel, is not constitutionally entitled to appointed counsel of choice.
Hendricks v. Zenon, 993 F.2d 664, 671 (9th Cir. 1993). When a criminal defendant requests a
5
People v. Marsden, 465 P.2d 44 (Cal. 1970) (holding it was error for the trial
court to deny a defendant’s motion to relieve his court-appointed attorney without holding a
hearing to allow the defendant to explain its grounds).
6
The transcript of the Marsden hearing was not included in the record on direct
appeal and is not included in the record before this Court on habeas review.
22
substitution of counsel, the trial court is constitutionally required to inquire about the defendant’s
reasons for wanting a new attorney. Schell, 218 F.3d at 1025 (“[I]t is well established and clear
that the Sixth Amendment requires on the record an appropriate inquiry into the grounds for such
a motion, and that the matter be resolved on the merits before the case goes forward.”). The
Supreme Court has, however, “reject[ed] the claim that the Sixth Amendment guarantees a
‘meaningful relationship’ between an accused and his counsel.” Morris v. Slappy, 461 U.S. 1,
13-14 (1983). The ultimate question before this Court then is not whether the state trial court
abused its discretion in denying Campbell’s motion but whether its denial “actually violated
[Campbell’s] constitutional rights in that the conflict between [Campbell] and his attorney had
become so great that it resulted in a total lack of communication or other significant impediment
that resulted in turn in an attorney-client relationship that fell short of that required by the Sixth
Amendment.” Schell, 218 F.3d at 1026. The Ninth Circuit has explained:
The test for determining whether the trial judge should have granted a substitution
motion is the same as the test for determining whether an irreconcilable conflict existed.
The court must consider: (1) the extent of the conflict; (2) whether the trial judge made
an appropriate inquiry into the extent of the conflict; and (3) the timeliness of the motion
to substitute counsel.
Daniels v. Woodford, 428 F.3d 1181, 1197-98 (9th Cir. 2005) (citations omitted).
Here, the record reflects that Campbell was given an opportunity to address his concerns
with counsel to the court. Although the transcript of that hearing is not before this Court, there is
no indication that Campbell was in any way prevented from sharing his concerns with the court,
and Campbell fails to demonstrate that he had a valid basis for demanding new counsel. See
United States v. Prime, 431 F.3d 1147, 1155 (9th Cir. 2005) (finding inquiry adequate where
defendant “was given the opportunity to express whatever concerns he had, and the court
23
inquired as to [defense counsel’s] commitment to the case and his perspective on the degree of
communication”). With respect to the nature and extent of the alleged conflict with counsel, the
substance of Campbell’s complaints appear to amount to a disagreement over defense trial
tactics. However, it is well-established that tactical matters are within the purview of trial
counsel’s discretion and disagreements over them do not necessitate substitution of counsel.
United States v. McKenna, 327 F.3d 830, 844 (9th Cir. 2003) (holding that dispute over trial
tactics “is not a sufficient conflict to warrant substitution of counsel”). Because Campbell fails
to demonstrate that the facts enumerated by the Ninth Circuit in Daniels weighed in favor of
granting his substitution motion, Campbell cannot show that he was denied his Sixth
Amendment right to counsel and is therefore not entitled to relief on this claim.
F.
Erroneous Jury Unanimity Instruction/Ineffective Assistance of Counsel (Grounds 9, 12)
Finally, Campbell argues that the unanimity instruction, as given to the jury, was
erroneous. The Court of Appeal considered and rejected this claim on direct appeal as follows:
[Campbell] also challenges the unanimity instruction given by the trial court
pertaining to the two sexual penetration counts involving Brandi and the three sexual
penetration counts involving Lynell. His argument lacks merit.
The verdict forms specified which acts supported which counts. Thus, as to
counts six, seven and eight, the verdicts specified acts committed against Lynell as “first
penetration,” “subsequent penetration,” and “last penetration.” As to counts eleven and
twelve, the verdicts specified acts committed against Brandi as “first penetration” and
“last penetration.” The prosecutor made parallel elections in closing argument, as
follows: “For example, when [counts] six, seven and eight go with one victim, your
verdict form will say first time, subsequent time and last time. [¶] For Counts 11 and 12,
first time and last time.”
The trial court gave CALCRIM No. 3515, instructing the jury that each count
charged a separate crime and “You must consider each count separately and return a
separate verdict for each one.”
The trial court also gave CALCRIM No. 3501, instructing the jury that there was
evidence of more than one act for some offenses, including the sexual penetration
offenses, and the jury “must not find the defendant guilty unless” either “You all agree
that the People have proved that the defendant committed at least one of these acts and
24
you all agree on which act he committed for each offense[,]” or “You all agree that the
People have proved that the defendant committed all the acts alleged to have occurred
during this time period and have proved that the defendant committed at least the number
of offenses charged.”
[Campbell’s] challenge pertains to the second alternative in CALCRIM No. 3501.
He objects to what he calls the “all-or-nothing” instruction, because he contends that, far
from ensuring unanimity, it invites non-unanimity. He argues as follows:
“Lynell testified that more than three or four acts occurred directly committed by
appellant, and an unspecified number of acts were committed on her by the
accomplice. In such a case, some of the jurors could have concluded that
appellant committed four or more acts; some could have concluded that he
committed three or more acts; and indeed, some could have concluded that he
committed none on her, but was an aider and abettor in the more than three or
more than four committed by the accomplice. [Citations.] In these
circumstances, the ‘all-or-nothing’ formulation does not result in a unanimous
finding of the same act for each count. Similarly in the case of Brandi, who also
could not remember the number of counts, some jurors may have found the
commission of only two acts, while others may have found more than two. Under
these circumstances, unanimity is not assured.”
Assuming the facts support the number of possibilities posited by [Campbell’s]
contention, we see no defect in the instruction as applied to this case. Both alternatives
in the unanimity instruction required that the jurors “all agree” in their findings. If the
jurors used the second alternative, they were told they must find as follows: “You all
agree that the People have proved that the defendant committed all the acts alleged to
have occurred during this time period and have proved that the defendant committed at
least the number of offenses charged.” If the jurors found [Campbell] “committed all the
acts alleged to have occurred” (emphasis added), the scenarios posited by [Campbell’s]
argument, quoted above, would not occur, because his scenarios contemplate that some
jurors might find less than all of the acts described by the evidence occurred. (See
People v. Baughman (2008) 166 Cal. App. 4th 1316, 1320–1321.)
We must presume the jury would correlate the separate-verdict instruction with
the unanimity instruction and would follow both instructions as given. (See People v.
Sanchez (2001) 26 Cal.4th 834, 852 [jurors are presumed to understand, correlate and
follow the instructions they are given]; see also People v. Milosavljevic (2010) 183
Cal.App.4th 640, 648–650 [rejecting a similar challenge to CALCRIM No. 3501].)
As for the offenses against Brandi, [Campbell] posits that some jurors might find
“only two acts” occurred, but others might find “more than two.” Even if that happened,
that would mean all of the jurors agreed on at least two acts, and because only two counts
were charged naming Brandi as a victim, that would not pose a unanimity problem. As
for the offenses against Lynell, [Campbell] posits that some jurors might have predicated
liability on three acts by [Campbell], and others might have predicated liability on three
acts by the accomplice. But in that case, the jury would not have obeyed the unanimity
instruction. The instruction required all jurors to “agree that the People have proved that
25
the defendant committed all the acts alleged to have occurred during this time period[.]”
Thus, [Campbell’s] scenarios would arise only if the jury disobeyed the instructions,
which we must presume did not happen.
Moreover, even if there had been an error regarding the unanimity instruction, the
error was harmless. (See People v. Thompson (1995) 36 Cal. App. 4th 843, 853.) The
defense position at trial was that the victims were lying. But the record indicates the jury
resolved this credibility dispute against [Campbell]. [Campbell] has not established that
the jury would have made a more favorable finding if they had received a different
instruction. (Ibid.)
Campbell, 2010 WL 5141842, at *5-6.
As an initial matter, the Constitution does not require unanimous agreement on the theory
underlying a conviction. See Richardson v. United States, 526 U.S. 813, 817 (1999) (federal
jury need not unanimously decide which set of facts make up a particular element of a crime);
Schad v. Arizona, 501 U.S. 624, 631-32 (1991) (plurality holding that conviction under different
theories does not violate due process); see also McKoy v. N. Carolina, 494 U.S. 433, 449 (1990)
(Blackmun, J., concurring) (“[D]ifferent jurors may be persuaded by different pieces of
evidence, even when they agree upon the bottom line. Plainly there is no general requirement
that the jury reach agreement on the preliminary factual issues which underlie the verdict.”
(footnotes omitted)).
While a California trial court may be required under state law mandating that a jury
verdict in a criminal case be unanimous to sua sponte instruct the jury that it must unanimously
agree on the acts underlying the offense in order to convict, federal law is clear that, at least in a
non-capital case, there is no federal right to a unanimous jury verdict. Compare People v.
Diedrich, 643 P.2d 971, 980-81 (Cal. 1982) and People v. Crawford, 182 Cal. Rptr. 536, 538
(Cal. Ct. App. 1982) (unanimity instruction required where defendant was charged with
possession of one or more firearms by felon and jury could disagree as to particular firearm),
26
with Schad, 501 U.S. at 634 n.5 (“a state criminal defendant, at least in noncapital cases, has no
federal right to a unanimous jury verdict”) and Apodaca v. Oregon, 406 U.S. 404, 410-13 (1972)
(no constitutional right to unanimous jury verdict in non-capital criminal cases).
Consequently, at least in non-capital criminal cases, courts within the Ninth Circuit have
routinely dismissed habeas claims arguing that a California “unanimity” jury instruction was
required. See, e.g., Sullivan v. Borg, 1 F.3d 926, 927-28 (9th Cir. 1993) (citing Schad to find that
instruction allowing California jury to convict defendant of first degree murder without
unanimity as to whether he had committed felony murder or premeditated murder did not violate
petitioner's due process rights); O’Rourke v. O’Connor, No. CIV S-09-1837, 2010 WL 4880667,
at *6 (E.D. Cal. Nov. 23, 2010).
Because there is no federal law requiring a jury verdict to be unanimous, as with any
instructional error, Campbell is entitled to habeas relief only if he can show that the trial court’s
failure to give a unanimity instruction “so infected the entire trial that the resulting conviction
violates due process.” Estelle, 502 U.S. at 72 (quoting Cupp v. Naughten, 414 U.S. 141, 147
(1973)). Where the alleged error is failure to give an instruction, the burden on the petitioner is
“especially heavy.” Henderson v. Kibbe, 431 U.S. 145, 155 (1977).
Campbell cannot satisfy this heavy burden because the record supports the Court of
Appeal’s conclusion that the jury instructions as a whole removed any possibility that the jurors
failed to reach unanimity in its verdict. This Court, like the California courts, must 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 v. Franklin,
27
471 U.S. 307, 323-24 & n.9 (1985) (discussing the subject in depth). For the reasons thoroughly
and persuasively explained by the Court of Appeal, Campbell fails to show that he was deprived
of a fair trial in this respect, and is not entitled to relief on this claim. And because Campbell
fails to show that the instructions as given were erroneous, he likewise fails to show that counsel
was deficient for failing to object to them. See Lockhart, 506 U.S. at 374.
V. CONCLUSION AND ORDER
Campbell is not entitled to relief on any ground raised in his 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,
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: March 7, 2017.
/s/James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge
28
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