Pardue v. Foulk
Filing
21
MEMORANDUM DECISION signed by Senior Judge James K. Singleton on 3/8/16 ORDERING 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. CASE CLOSED. (Mena-Sanchez, L)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
SHONN LYNN PARDUE,
No. 2:14-cv-02255-JKS
Petitioner,
MEMORANDUM DECISION
vs.
WARREN L. MONTGOMERY, Warden,
Calipatria State Prison,1
Respondent.
Shonn Lynn Pardue, 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. Pardue is in the custody of the
California Department of Corrections and Rehabilitation and incarcerated at Calipatria State
Prison. Respondent has answered, and Pardue has not replied.
I. BACKGROUND/PRIOR PROCEEDINGS
On March 3, 2010, Pardue was charged in an 11-count information when, in the course of
the breakup of a romantic relationship, he violently lashed out at his former girlfriend, Dominque
Griffin, her family, and a friend. The information included the following charges: assault with a
firearm on Mikio Morris, with personal use of a firearm allegation (count 1); kidnapping of
Morris, with personal use of a firearm (count 2); criminal threats against Morris, with personal
use of a firearm (count 3); attempted criminal threats against Vivian Richardson (count 4);
assault with a firearm on Mark McFadzean, with personal use of a firearm and personal infliction
1
Warren L. Montgomery, Warden, Calipatria State Prison, is substituted for F.
Foulk, Warden, High Desert State Prison. FED. R. CIV. P. 25(c).
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of great bodily injury allegations (count 5); kidnapping of McFadzean, with personal discharge
of a firearm and personal infliction of great bodily injury (count 6); kidnapping of Griffin (count
7); criminal threats against McFadzean, with personal use of a firearm (count 8); criminal threats
against Griffin, with personal use of a firearm (count 9); criminal threats against D.W., with
personal use of a firearm (count 10); and unlawful possession of ammunition by a felon (count
11). The information further alleged that Pardue had two prior serious felony convictions.
Pardue pled not guilty to the charges and proceeded to jury trial. On direct appeal of his
conviction, the California Court of Appeal described the following events underlying the charges
against Pardue and the evidence presented at trial:
The Prosecution’s Case
[Pardue] and victim Dominique Griffin had a romantic relationship that ended in
February 2008 when [Pardue] moved out of the home they had shared with their
three-year-old daughter and Griffin’s eight-year-old son and 15-year-old daughter, D.W.
In the early afternoon of March 2, 2008, [Pardue] became upset when he could
not find Griffin at her home and saw in her driveway the car of a man, Mark McFadzean,
whom [Pardue] believed was Griffin’s new boyfriend.4 D.W. telephoned Griffin’s
mother, Vivian Richardson, and said [Pardue] was at the house acting crazy. Richardson
has known [Pardue] since he was a child and knows him to be prone to “excited
episodes.” [Pardue] then phoned Richardson, said he was upset about the end of his
relationship with Griffin and planned to vandalize the new boyfriend’s car or have it
impounded. Richardson asked her godson, Mikio Morris, to protect McFadzean’s car by
blocking it with her truck. Morris did so. Morris then walked down the street to get an
ice cream. As he walked back toward the house, [Pardue] met Morris in the driveway.
He put his arm around Morris, pressed a gun in Morris’s rib, and ordered him into
Griffin’s house, saying he did not want to shoot Morris outside. Inside, Morris saw
[Pardue’s] two nephews, looking mad. At gunpoint, [Pardue] questioned Morris about
Griffin’s whereabouts. Morris said he had had an argument with Griffin and had not
spoken to her for about a month. [Pardue] demanded to check Morris’s cell phone call
history and threatened to shoot Morris if Griffin’s number appeared. When Griffin’s
number did not appear in the cell phone, [Pardue] wept and said he did not know where
Griffin or their daughter was. Morris received a phone call from Richardson and told her
that [Pardue] was at the house with a gun. [Pardue] moved out of Morris’s view, and
Morris heard clinking sounds like the unloading of a gun. [Pardue] returned and showed
Morris that the gun was unloaded.
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FN4. Griffin and McFadzean testified they were just friends at the time of the
offenses (March 2008). But by the time of trial in March 2010, they were
married.
Richardson, without calling the police, drove to Griffin’s house. [Pardue], crying
and angry, said he was going to take his daughter, kill himself and everyone else.
Richardson did not take the threats seriously and told [Pardue] to stop talking crazy. She
never saw [Pardue] holding a gun at the house that day but she did see a revolver on a
table.
Richardson said she would give [Pardue] his daughter in exchange for [Pardue]
releasing Morris. Richardson testified she feared [Pardue] might hurt Morris but
believed [Pardue] would not hurt his own daughter. Everyone drove in Richardson’s van
to her home, a short distance away. Morris went inside, got [Pardue’s] daughter and gave
her to [Pardue]. [Pardue] physically blocked Morris from getting back into the van, and
Richardson told Morris to stay. Richardson drove [Pardue], his daughter, and his
nephews to a grocery store and thereafter dropped them all off with [Pardue’s] sister,
Nedra King. No one called the police at that time.
Richardson later received a phone call from Griffin, who was in Los Angeles.
Richardson related what had happened. Griffin said to call the police. Richardson was
reluctant because she did not want to get [Pardue] in trouble, and having watched prior
similar episodes of [Pardue], she did not believe his conduct was completely out of the
ordinary. When Richardson eventually spoke with police, she said she had not called
them because [Pardue] threatened to kill everyone if she did. Her main motivation was to
get [Pardue] away from her family.
Griffin and McFadzean returned that night around 10:30 or 11:00 p.m. (according
to Griffin) or between 9:00 and 11:00 p.m. (according to McFadzean). The security gate
on Griffin’s front door was locked. D.W. let them in. Griffin saw that her bedroom had
been ransacked. As she walked through the house, [Pardue] jumped out from behind a
speaker, where he had been hiding. He had a gun in his hand and said, “I’m gonna
fucking kill you.” She picked up a phone. He pointed the gun at her, said, “Put the
fucking phone down,” and “I’m gonna kill you.” She feared for her life and threw the
phone down.
[Pardue] grabbed McFadzean around the neck from behind, hit him with the gun,
pulled him into the living room and had him sit or kneel. McFadzean said he was
Griffin’s friend. [Pardue] said, “That’s my fuckin’ wife.” [Pardue] got upset, yelling and
screaming. D.W. came out of her room. Griffin testified that everyone was yelling and
screaming, pleading with [Pardue] to calm down. McFadzean, who is smaller than
[Pardue], testified he was afraid for his life and kept quiet. [Pardue] kept pointing the
gun back and forth, saying, “You guys, I’ll fucking kill you.” Griffin pleaded with
[Pardue] just to take her and leave everyone else alone. [Pardue] replied, “No, this
mother fucker is my ticket to Oak Park.”
[Pardue] grabbed McFadzean in a headlock with a gun to his head. Griffin,
followed by [Pardue], who was holding McFadzean, went outside. [Pardue] told Griffin
to drive. [Pardue] made McFadzean lie face down in the backseat of Griffin’s car and
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held the gun to the back of McFadzean’s head. D.W., who had insisted on accompanying
them, tried to talk [Pardue] down.5 [Pardue] directed Griffin to drive to his sister Nedra’s
home and honk the horn. No one came out. [Pardue] told Griffin, “Your daughter’s in
that house. Go get [her], go.” Griffin knocked on the door but no one answered.
[Pardue] started screaming for his sister to come outside, with no response. [Pardue]
started shaking, rocking the car, and saying “This is what you want. This is what you
want,” and fired the gun, shooting McFadzean in the leg. [Pardue] jumped out of the car.
Griffin ran to the back of the car and saw McFadzean’s head hanging down outside of the
car, with his legs still inside the car. [Pardue], with the gun in his hand, said, “I’m gonna
kill this mother fucker. I’m going to kill this mother fucker.” [Pardue’s] sister and niece
came outside, distracting [Pardue]. Griffin and D.W. got back in the car and drove off
with McFadzean toward a hospital. Griffin called 911 as they drove. They stopped when
they saw a police officer, and the officer summoned an ambulance.
FN5. D.W. did not testify.
The jury saw a video captured by a camera mounted on the patrol car, showing
Griffin and D.W. upset outside the car while the police assisted McFadzean. The video
also showed Vivian Richardson arriving about 45 minutes later, and a crime scene
investigation officer opening the trunk of the car, allowing Griffin to remove belongings
before the car was impounded.
While Griffin was in the police station, she received a phone call from [Pardue].
He demanded, “Why did you tell the police I kidnapped my daughter?” By that time, the
incident had been reported on the news.
Later, after Griffin arrived at her home, she asked the police to check the premises
because she was in fear [Pardue] might be lying in wait for her. The police found a
duffel bag in Griffin’s yard. The yard was wet from a recent rain, but the duffel bag was
dry. The bag contained .357 revolver ammunition, [Pardue’s] parole card, and personal
photos of [Pardue] and Griffin, including some of a sexual nature.6
FN6. The parties stipulated [Pardue] was a felon at the time he was alleged to be
a felon in possession of ammunition.
[Pardue] called Griffin later on March 3, claiming he was leaving town with their
daughter and would get a new mother for her. However, Griffin was able to retrieve the
child from [Pardue’s] relatives.
Police arrested [Pardue] in Las Vegas a year later, in March 2009. When arrested,
[Pardue] used the name of his brother, Richard Pardue.
A treating trauma surgeon testified McFadzean lost a substantial amount of blood
before arriving in the emergency room and would have died within a couple of hours
without medical treatment. A projectile penetrated the right thigh and lodged in the left
thigh. The femoral artery in McFadzean’s right leg was cut in half, and the femur bone in
his left thigh was shattered. McFadzean was in surgery for several hours. Doctors
removed a vein from his left leg to repair his artery and placed a rod in his left leg to
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replace the shattered bone. The surgeon removed bullet fragments from his leg and
opined that the wounds were consistent with gunshot wounds. McFadzean remains in
pain and will have to take medication for the rest of his life to avoid a fatal blood clot.
McFadzean testified that he lost consciousness shortly after being shot. The next
thing he remembered was waking up in the hospital connected to breathing tubes.
At trial, as at the preliminary hearing, McFadzean identified [Pardue] as the
perpetrator. McFadzean did not identify [Pardue] when police presented him with a
photo lineup in the hospital; but at that time he was in pain, on pain medication, and
attached to breathing tubes.
On the witness stand, Griffin admitted she was convicted of “two felonies
involving moral turpitude” in 2005. McFadzean admitted he was convicted of “three
crimes of moral turpitude” in 1992, “a crime of moral turpitude” in 1993, “two crimes of
moral turpitude” in 1996, and two or three other “crime[s] of moral turpitude” between
1997 and 1999. By 2008, he had turned his life around and had become an auto
mechanic and business owner.
The Defense Case
The defense called [Pardue’s] sister Nedra King as a witness, but she invoked the
privilege against self-incrimination.
[Pardue’s] niece, A.B., testified. She claimed she did not hear a gunshot and
came out of her house because someone knocked on the door. She saw [Pardue] and
Griffin arguing not far from a burgundy car, and saw D.W. crying and screaming. A.B.
said she did not know what was happening and ran around the corner to get a cousin.
When she returned, the group was gone. The niece initially denied seeing a man in the
car but admitted it after the prosecutor confronted her with her statement to police. She
admitted she was “adjudicated for a crime involving moral turpitude” in 2006.
[Pardue’s] older brother, Richard Pardue, testified to his opinion that Griffin is
untrustworthy, based on her having falsely told [Pardue] that she and Richard had had
sex. Richard believes he and [Pardue] are honest persons. Richard admitted he was
convicted of “a misdemeanor crime of moral turpitude” in 2001.
People v. Pardue, No. C064864, 2014 WL 1571806, at *2-5 (Cal. Ct. App. April 19, 2014).
At the conclusion of trial, the jury returned verdicts finding Pardue guilty on all counts
except count 10, as to which the jury found him not guilty of criminal threats against D.W. but
guilty of the lesser included offense of attempted criminal threats. The jury also found true three
allegations of personal use of a firearm and two allegations of personal infliction of great bodily
injury. Because Pardue waived his right to a jury trial on the prior conviction allegations, the
court conducted a bench trial and found true the two prior serious felony conviction allegations.
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The court declined to strike the allegations under People v. Superior Court (Romero), 917 P.2d
628 (Cal. 1996).2 The court subsequently sentenced Pardue to an aggregate term of 175 years to
life imprisonment plus a determinate imprisonment term of 11 years and 4 months.
Through counsel, Pardue appealed his conviction, arguing that: 1) the prosecutor
discriminated against African-Americans during jury selection;3 2) the trial court improperly
excluded third party culpability evidence; 3) trial counsel was ineffective for failing to object for
impeachment purposes to sanitizing the victims’ prior convictions; 4) the prosecutor committed
misconduct during summation; and 5) the trial court made various sentencing errors. On April
19, 2014, the Court of Appeal issued a reasoned, unpublished opinion agreeing that there were
sentencing errors and remanding for resentencing, but otherwise affirming the judgment against
Pardue. Pardue, 2014 WL 1571806, at *24. Pardue petitioned for review in the California
Supreme Court, which was summarily denied on July 23, 2014.
Pardue timely filed a pro se Petition for a Writ of Habeas Corpus to this Court on
September 24, 2014.
2
See also CAL. PENAL CODE §§ 667(a)(1) & (b)-(I), 1170.12(a)-(d).
3
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).
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II. GROUNDS RAISED
In his pro se Petition before this Court, Pardue raises the four grounds for relief he
unsuccessfully raised before the state courts, namely: 1) the prosecutor committed a Batson
violation; 2) the trial court erroneously excluded exculpatory evidence; 3) defense counsel was
ineffective for failing to object to improperly sanitized impeachment; and 4) the prosecutor
committed misconduct during summation.
III. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2254(d), this Court cannot grant relief unless the decision of the state court was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” § 2254(d)(1), or “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding,”
§ 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that
contradicts controlling Supreme Court authority or “if the state court confronts a set of facts that
are materially indistinguishable from a decision” of the Supreme Court, but nevertheless arrives
at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000).
The Supreme Court has explained that “clearly established Federal law” in § 2254(d)(1)
“refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the
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
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cannot be said that the state court ‘unreasonabl[y] appli[ed] clearly established Federal law.’”
Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted).
To the extent that the Petition raises issues of the proper application of state law, they are
beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.
Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was
correctly applied). It is a fundamental precept of dual federalism that the states possess primary
authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62,
67-68 (1991) (a federal habeas court cannot reexamine a state court’s interpretation and
application of state law); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state
court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536
U.S. 584 (2002).
In applying these standards on habeas review, this Court reviews the “last reasoned
decision” by the state court. See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004)
(citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). Here, the only decision on
Simmons’ collateral review claims was a summary denial by the California Supreme Court on
habeas review, which is an adjudication on the merits and entitled to deference. Harrington v.
Richter, 562 U.S. 86, 99 (2011). Under the AEDPA, the state court’s findings of fact are
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).
Pardue has not replied to Respondent’s answer. The relevant statute provides that “[t]he
allegations of a return to the writ of habeas corpus or of an answer to an order to show cause in a
habeas corpus proceeding, if not traversed, shall be accepted as true except to the extent that the
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judge finds from the evidence that they are not true.” 28 U.S.C. § 2248; see also Carlson v.
Landon, 342 U.S. 524, 530 (1952). Where, as here, there is no traverse filed and no evidence
offered to contradict the allegations of the return, the court must accept those allegations as true.
See Phillips v. Pitchess, 451 F.2d 913, 919 (9th Cir. 1971).
IV. DISCUSSION
A.
Batson Claim (Ground One)
Pardue first argues that the prosecution impermissibly used a peremptory challenge to
excuse from the jury pool a potential juror whom the Court of Appeal referred to as “Ms. A.”
The appellate court laid out the following facts underlying this claim:
[Pardue] is African–American. The record indicates the venire included four
prospective jurors who are African–American. Based on the number of jury
questionnaires in the record, there were a total of 64 prospective jurors in the venire.
During voir dire, the prosecutor used a peremptory challenge to excuse an
African–American woman, Ms. A. The jury, as ultimately sworn, contained one
African–American juror.
On March 9, 2010, before the jury was sworn, defense counsel stated on the
record that he had not immediately objected to the peremptory challenge of Ms. A. but,
before the next peremptory challenge, he had asked to approach, at which time, the court
and counsel had gone into chambers. At that time, defense counsel had asked to set forth
a prima facie case for a Wheeler/Batson motion, but the trial court had stated it was too
late because the prospective juror was probably already gone and was no longer
available, and defense counsel could make his record later.9
FN9. On appeal, the People agree with [Pardue] that it was not too late for a
Wheeler/Batson motion, because the jury had not yet been impaneled at
that point. Also, we note that the “usual remedy” for a Wheeler/Batson
violation is not seating the improperly challenged juror, but rather
declaring a mistrial, dismissing the remaining panel and starting jury
selection anew. Alternative remedies, such as seating the improperly
excused juror or additional challenges for the moving party, may be
provided upon the moving party’s consent or waiver of the “usual
remedy.” Consequently, the fact that an improperly excused juror is no
longer available does not preclude a Wheeler/Batson violation finding.
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After the jury was sworn, defense counsel stated on the record that he was now
moving for a mistrial, “because there is nothing we can do about it now, because the jury
has been sworn.” Defense counsel said that when Ms. A. was dismissed, there was only
one other African–American in the box (who became a sworn juror) and no
African–Americans in the audience. He had excused for cause one prospective
African–American juror. The prosecutor had used a peremptory challenge on one other
prospective African–American juror, Mr. C.10 In defense counsel’s opinion, the
prosecution should have wanted Ms. A. as a juror, because she was a victim of domestic
violence in the 1980’s, and in defense counsel’s opinion (“it was my own perception”),
Ms. A.’s body language suggested displeasure when she described her daughter’s
decision not to pursue prosecution when the daughter was sexually assaulted.
FN10. [Pardue] repeatedly emphasizes that the prosecutor peremptorily
challenged two of the four available African–American jurors. However,
defense counsel did not complain about the prosecutor’s peremptory
challenge of Mr. C. “The failure to articulate clearly a Wheeler/Batson
objection forfeits the issue for appeal.” Consequently, we reject
[Pardue’s] attempt to use the excusal of Mr. C. to bolster his showing on
appeal.
The trial court stated the defense had not made a prima facie case. The court
nevertheless invited the prosecutor to respond.
The prosecutor noted he himself is African–American11 and offered his reasons
for excusing Ms. A.: “[S]he explained that she had a domestic violence [previously]. I
don’t think that’s something that a prosecutor necessarily wants to have on a domestic
violence case, especially in light [of] the fact that she did not notify law enforcement. [¶]
I asked her if she continued a relationship with that individual afterwards. She was
unclear about it. Additionally, it didn’t appear that law enforcement was called when her
daughter was raped or sexually assaulted. [¶] I had an issue with that because it
appeared that she didn’t call law enforcement when these terrible things happened to her.
I didn’t know if that meant she had an issue with law enforcement or if she didn’t think
that what happened was important enough. [¶] Furthermore, your Honor, she stated that
her son had a recent assault where he was prosecuted, and that occurred fairly recently.
[¶] So I think in light of the numerous issues with her family and herself, we were more
than justified to excuse her.”
FN11. We note that this circumstance is not relevant to the determination of
whether the prosecutor excused Ms. A based on group bias. What would
have been relevant is the race of the victims and witnesses in the case.
When the victims and/or prosecution witnesses are members of the
cognizable group, this circumstance cuts against a finding of group bias
because there is less motive for the prosecutor to discriminate against
prospective jurors who are members of the same group. However, the
record here does not reflect that the prosecutor informed the court of the
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race of the victims during the Wheeler/Batson motion and we are unable
to determine their race otherwise.
The trial court denied the mistrial motion, stating regarding the prosecutor’s
characterization of Ms. A.’s voir dire, “that’s what I recall, which made sense to me as to
why she was excluded. [¶] There’s no basis upon which I can grant the motion. [¶] It’s
denied.”
Pardue, 2014 WL 1571806, at *5-6 (citations omitted).
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).
In this case, the trial court stated that Pardue had not satisfied the first step by showing a
prima facie case of discrimination. The Court of Appeal, however, in conformity with then-
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controlling California law declined to address whether Pardue established a prima facie case and
instead considered whether the prosecutor’s proffered reasons for striking Ms. A. from the jury
provided a genuine, race-neutral justification for the challenge. Pardue, 2014 WL 1571806, at
*7.
1. Is the first Batson step regarding a prima facie case moot in this case?
Since the Court of Appeal issued a reasoned, though not published opinion, normally this
Court would review only that opinion and ignore an earlier opinion by the trial court. Thus,
since the Court of Appeal focused on the second and third prong of the Batson rule and ignored
the first step, this Court would be limited to the second and third steps and evaluate the Court of
Appeal’s decision giving due AEDPA deference. There is, however, an important reason for not
limiting review in this way, and the absence of a prima facie case is of great importance.
The Court of Appeal did not disagree with the trial court’s conclusion that Pardue had
failed to make a prima facie case at step one of the Batson analysis. Rather, the trial court
followed then-controlling precedents from the California Supreme Court which strongly
recommended that trial courts do not stop the Batson inquiry at the first step but in all cases
should ask the prosecutor for her reasons.4 The explanation for this is set out in the Court of
Appeal’s decision. In People v. Wheeler, 583 P.2d 748 (Cal. 1976), the California Supreme
Court anticipated Batson by eight years and adopted a three-step procedure almost identical to
the one later adopted in Batson. The California rule differed in two respects from Batson, its
4
The California Supreme Court encourages California trial courts to ask
prosecutors for explanations of contested peremptory challenges even in the absence of a prima
facie case. See People v. Howard, 175 P.3d 13, 25 (Cal. 2008); People v. Bonilla, 160 P.3d 84,
105 n.13 (Cal. 2007).
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rule was predicated on the California equivalent to the Sixth Amendment right to a jury chosen
from a fair cross section of the community while Batson rests upon the equal protection clause of
the Fourteenth Amendment, and more important for this case, Wheeler’s first step required the
defendant to prove a “strong likelihood” that the prosecutor’s pre-empt was discriminatory to
make a prima facie case while Batson only required “an inference of a discriminatory purpose”
to satisfy the first step. Compare Wheeler, 583 P.2d at 764-66, with Batson, 476 U.S. at 98.
In Johnson v. California, 545 U.S. 162, 168 (2005), the United States Supreme Court
followed the Ninth Circuit and disapproved the “strong likelihood” formulation of step one,
stressing that the defendant was not required to prove discrimination at step one but need only
raise an inference. Thereafter, a real danger existed that an appellate court, perhaps years after
the trial, would disagree with a trial court’s rejection of a defendant’s prima facie case and
remand for a new trial at great expense to the parties and at the risk that evidence would be lost
and witnesses unavailable. By requiring trial courts to make a record regarding the prosecutor’s
reasons in every case, the necessary record would be available to consider steps 2 and 3 should a
later court disagree about the presence of a prima facie case of group bias. If, however, evidence
of the prosecutor’s actual motivation was present in every case, it seemed reasonable to hold that
a finding that the defendant had failed to make a prima facie case was moot because the purpose
of the prima facie case in the Batson formulation was to trigger the prosecutor’s duty to explain
her pre-empt. 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 the prima facie case is moot,
the reviewing court expresses no opinion on the presence of a prima facie case and skips directly
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to the third stage and determines in light of the prosecutor’s reasons whether defendant has
proved intentional discrimination).
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). In so doing, the court should not consider the prosecutor’s
purported race-neutral reasons at the first stage, and if the trial court’s finding of no prima facie
case is affirmed, must nevertheless consider whether the prosecutor’s second stage explanation is
itself discriminatory. Id. at 1048.
If the only purpose for requiring a prima facie case was to trigger a race-neutral
explanation for the challenge, and under California’s prudential rule the prosecutor will always
be required to give a contemporaneous explanation for a disputed challenge, then the first Batson
step will always be “moot” and might as well be dispensed with. It seems, therefore, that this
Court should consider whether Pardue made a prima facie case. If he did, that fact alone would
lend weight to the ultimate question whether Pardue proved by a preponderance of the evidence
that the prosecutor’s challenge to Ms. A. was race-based. Here, the trial court explicitly stated,
“The Court does not believe that a prima facie case has been made yet.” The first step of Batson
has thus not been mooted. See Hernandez v. New York, 500 U.S. 352, 359 (1991) (existence of
prima facie case mooted when the prosecutor volunteered an explanation and the trial court ruled
on the ultimate issue of intentional discrimination without ruling on the preliminary issue).
Based on the previously-discussed recent jurisprudence from the California Supreme Court, this
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Court agrees that where, as here, the trial court determined that the defendant failed to establish a
prima facie case of discrimination, a reviewing court should first review the trial court’s firststage ruling. Scott, 349 P.3d at 1048. This Court will therefore follow the procedure laid out by
the California Supreme Court and, as discussed below, first address whether Pardue made a
prima facie showing. See id. (“In sum, where (1) the trial court has determined that no prima
facie case of discrimination exists, (2) the trial court allows or invites the prosecutor to state his
or her reasons for excusing the juror on the record, (3) the prosecutor provides nondiscriminatory
reasons, and (4) the trial court determines that the prosecutor’s nondiscriminatory reasons are
genuine, an appellate court should begin its analysis of the trial court’s denial of the
Batson/Wheeler motion with a review of the first-stage ruling.”).
Having determined that it should review the trial court’s determination that no prima
facie case has been established, the Court must also determine the appropriate standard of
review. Under AEDPA, the Court must review a state appellate court’s decision under the
deferential AEDPA standard to determine whether it was contrary to or an unreasonable
application of Batson, or rested on an unreasonable determination of the facts in light of the
evidence. 28 U.S.C. § 2254(d)(1) & (2). Because the Court of Appeal’s decision did not rest on
Batson’s first step, however, it is not clear whether AEDPA deference applies to the trial court’s
ruling below. Nonetheless, federal courts may deny “writs of habeas corpus under § 2254 by
engaging in de novo review when it is unclear whether AEDPA deference applies, because a
habeas petitioner will not be entitled to a writ of habeas corpus if his or her claim is rejected on
de novo review.” Berghuis v. Thompkins, 560 U.S. 370, 389 (2010). In other words, if Pardue
cannot demonstrate a Batson violation on de novo review, which is a more favorable standard of
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review for him, he cannot succeed under AEDPA’s deferential standard. The Court will
therefore consider de novo whether Pardue established a prima facie case of discrimination.
2.
Prima facie case
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). A defendant satisfies the requirements of Batson’s
first step by producing evidence sufficient to permit the trial judge to draw an inference that
discrimination has occurred. Johnson v. California, 545 U.S. 162, 170 (2005).
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, Pardue does not
make a statistical argument and, indeed, 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 AfricanAmericans 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
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for the prosecution’s challenge”).5 Additionally, the sworn jury contained one
African–American.6
A comparison of the stricken juror with jurors permitted to serve may also shed light on
whether there is a prima facie case. Miller-El, 545 U.S. at 241, 247-48.7 But Pardue does not
point to any other jurors who shared the relevant attributes as Ms. A. that were not challenged by
the prosecutor, nor did he provide any comparative analysis on direct appeal.
Thus, the Court must determine whether there are any other indications of intentional
discrimination here. Consistent with that review, the record of the voir dire does not disclose
any other circumstances suggesting that the prosecutor’s dismissal of Ms. A. was racially
motivated. Likewise, the record shows that the prosecutor was consistent in his review of
prospective jurors.
Nor is Pardue’s claim that Ms. A. appeared on the surface to be pro-law enforcement
sufficient on its own to establish a prima facie case. His argument that Ms. A., as the victim of
5
Cited for persuasive value pursuant to Ninth Circuit Rule 36-3.
6
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.
7
Comparative analysis is most often used at the third stage of the Batson rule in
evaluating the prosecutor’s reasons for her pre-empt but may be used at the first stage in
determining whether there is a prima facie case. See, e.g., Crittenden, 624 F.3d at 956.
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domestic violence in the 1980’s and who, “in defense counsel’s opinion . . . [had] body language
suggest[ing] displeasure when she described her daughter’s decision not to pursue prosecution
when the daughter was sexually assaulted,” Pardue, 2014 WL 1571806, at *6, would have been
favorable to the prosecution is too speculative and isolated to imply a discriminatory purpose.
Accordingly, even on de novo review, Pardue fails to establish a prima facie case of
discrimination and thus cannot prevail on his Batson claim.
3.
Race-neutral justification
Proceeding to the second step of the Batson procedure, the Court of Appeal determined
that the prosecutor’s stated reasons for his challenge were race-neutral on their face:
Here, although there were discrepancies between the prosecutor’s recollection of
what Ms. A. had said on voir dire and what she actually said, the record as a whole
supports the prosecutor’s race-neutral explanation for excusing her.
In her juror questionnaire, Ms. A. answered “Yes Rape” to the question whether
she, a close friend or relative had ever been a victim of a crime, and she answered “Yes
Assault” to the question whether she, a close friend or relative had ever been arrested for
a crime. During voir dire, Ms. A. said she had had no negative experiences with law
enforcement. When asked if she believed law enforcement should be involved in
domestic violence or stay out of it, she said, “No, I don’t think it should just be a family
issue. [¶] . . . [¶] . . . I was a victim of domestic violence. I didn’t pursue any legal
action. I was blessed and fortunate that my family got me out of that situation. But I
definitely—looking back, you know, in hindsight, I definitely would have taken
legal—gone the legal route, because it was like so fearful. I was so fearful at that point.”
When asked if she regretted that she did not contact law enforcement, she said, “Yeah, I
am [sic].” The domestic violence involving Ms. A. occurred in the early 1980’s. She did
not contact law enforcement because “given the day and the time, it wasn’t as if there’s
the resources that are available today. And I was very fearful. And so, you know, with
the resources that I’m aware of today, it would be a different situation.” When asked if
she stayed in the relationship after the domestic violence, she said, “Well, I was in a
relationship for like three years; and I eventually just—you know, like I said, with the
help of my family and friends, just they just took me away.”
Ms. A. additionally said her daughter was a victim, apparently of a domestic
violence sexual assault, in 1993, and the police were called, but the person was not
prosecuted because her daughter did not want to go forward with the case. Around 1990,
Ms. A.’s son was prosecuted for a misdemeanor assault when he had had too much to
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drink after graduation and got into a fight with a friend. It was resolved before trial. She
thought her son was treated fairly.
....
[Pardue] is correct that the prosecutor was wrong when he said Ms. A.’s son’s
assault prosecution was “recent,” because it happened 20 years earlier. Nevertheless, this
inaccuracy does not prove the exclusion discriminatory. . . . Plus, the fact that the
prospective juror’s son had been accused of a crime would in itself constitute a
race-neutral reason for the peremptory challenge. Here, even if it was not recent, it is
well settled that the son’s assault prosecution would still have been a valid, group-neutral
reason for exercising a peremptory challenge as to Ms. A. Moreover, in the instant case,
Ms. A.’s son’s prosecution was one small point in the prosecutor’s list of reasons for the
challenge.
The prosecutor’s first reason was reluctance to have a domestic violence victim
serve as a juror in a domestic violence case, particularly where the victim did not call law
enforcement. Despite the discrepancies in the prosecutor’s recollection of what Ms. A
said on voir dire, this is a group-neutral reason. It is irrelevant that defense counsel
claimed he would embrace such a juror were he the prosecutor. The sincerity of the
prosecutor’s desire to not have jurors with such backgrounds is demonstrated by the fact
that the prosecutor also used a peremptory challenge against another prospective juror,
Ms. C., who had been a victim of domestic violence in the early 1990’s. Ms. C. did not
call police because it did not seem necessary. The incident happened as she was moving
out of a home after a relationship ended. But now, she does think it appropriate for law
enforcement to be involved in domestic violence matters. The record does not disclose
her race. [Pardue] does not contend she was African–American. Thus, the record
supports the sincerity of the prosecutor’s explanation.
Pardue, 2014 WL 1571806, at *7-8 (citations omitted).
Pardue does not seriously dispute the appellate court’s finding that the reasons were raceneutral on their face. He instead focuses his argument on the third step and argues that the
prosecutor’s reasons, while facially race neutral, were pretexts for discrimination. The Court of
Appeal rejected this argument:
[Pardue] argues Ms. C. cannot be compared to Ms. A., because Ms. C. never said
she regretted her decision not to call the police (it was an isolated incident), whereas Ms.
A. was the victim of continuous abuse, expressed regret that she did not call the police,
and apparently stayed in the relationship for some time. [Pardue] cites People v. Lenix
(2008) 44 Cal.4th 602, 630–631 in arguing that given the differences between the two
potential jurors, comparative juror analysis does not refute his claim that the
prosecution’s challenge of Ms. A. was discriminatory. However, it is [Pardue’s] burden
to show purposeful discrimination. The differences noted by [Pardue] are not so
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significant as to require the trial court to doubt the prosecutor’s credibility. Both
prospective jurors were victims of domestic violence who had not reported their abuser to
the police, and the court was justified in accepting the prosecutor’s explanation that he
did not want people with that background on the jury.
Additionally, the record supports the prosecutor’s uncertainty about Ms. A. She
was unclear in her response to his question whether she continued the relationship with
her abuser. Furthermore, the prosecutor was not required to accept Ms. A.’s expression
of a current opinion that government should be involved in such family disputes, which
was inconsistent with her past actions. This is not to say that Ms. A. was deceptive. It
would be perfectly normal for her attitude to have changed over time in the years since
she was a victim. The point is that a prosecutor is not required to gamble on a
prospective juror about whom he has reservations. The prosecutor may act on a hunch.
The record does not support [Pardue’s] claim that the prosecutor’s reservations were
pretexts for race discrimination.
We also observe that an African–American person served on the jury. While the
circumstance that a prosecutor accepted a panel containing members of the cognizable
group is not conclusive, it is an indication of the prosecutor’s good faith in exercising
peremptory challenges.
Id. at *8-9 (citations omitted).
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)). Under the AEDPA, a federal habeas court may only grant relief
“if it was unreasonable to credit the prosecutor’s race-neutral explanations for the Batson
challenge.” Rice v. Collins, 546 U.S. 333, 338 (2006). This “standard is doubly deferential:
unless the state appellate 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).
Under these standards, the trial court’s determination that the prosecutor did not engage
in purposeful discrimination was not an unreasonable application of Supreme Court authority.
For the reasons discussed above, a review of the record provides no indication that the
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prosecutor’s race-neutral justifications were mere pretext for discrimination. Indeed, Justice
Breyer has commented that “the exercise of a peremptory challenge can rest upon instinct not
reason.” Rice, 546 U.S. at 343 (Breyer, J., concurring). It is Pardue’s burden to prove
purposeful discrimination. See Purkett, 514 U.S. at 768 (“the ultimate burden of persuasion
regarding racial motivation rests with, and never shifts from, the opponent of the strike”).
Again, Pardue provides no comparative juror analysis that would indicate that the prosecutor’s
provided reasons were a sham, and the record does not support that conclusion. Pardue has thus
failed to satisfy his burden at the third stage of the Batson inquiry as well. He is therefore not
entitled to relief on his Batson claim.
B.
Evidentiary Error (Ground Two)
Pardue next contends that the trial court erred in excluding evidence of third party
culpability. The Court of Appeal also laid out the following background to this claim:
Defense counsel sought to introduce evidence that Griffin previously had been
convicted of a federal offense of smuggling drugs into prison and that McFadzean forced
her to smuggle narcotics into prison to an inmate named Johnny Jingles. The defense
theory was that some unknown person shot McFadzean during a drug transaction gone
bad, and McFadzean forced Griffin on the spot to help him frame [Pardue] to eliminate
[Pardue] as McFadzean’s romantic rival for Griffin’s affections. The defense argued the
evidence was admissible to prove Griffin’s motive falsely to identify [Pardue] as the
perpetrator under Evidence Code section 1101.12
FN12. Evidence Code section 1101, subdivision (a) makes character evidence
generally inadmissible to prove conduct, but subdivision (b) states,
“Nothing in this section prohibits the admission of evidence that a person
committed a crime, civil wrong, or other act when relevant to prove some
fact (such as motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake or accident . . .) other than his or her
disposition to commit such an act.”
The trial court ruled that all prior convictions for crimes of moral turpitude would
be admissible for impeachment, but said the defense theory of third party culpability was
undeveloped. When the issue resurfaced later, the court asked how the proposed
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evidence would counter the expected testimony of Richardson and Morris. Defense
counsel said he had “privileged information,” which he would disclose only in camera.
Defense counsel then presented a sealed declaration, stating that [Pardue] had
provided counsel with information that Griffin and her family feared McFadzean and
were coerced into participating in his drug-trafficking operation. [Pardue] told counsel
that during a conversation he had had with Griffin after the shooting, she told [Pardue]
McFadzean had a coat in his car trunk containing thousands of dollars in cash from
illegal drug sales, which was the real reason that Richardson wanted to protect
McFadzean’s car. Griffin removed that same coat from her own car while the police were
rendering assistance to the injured McFadzean, and this was depicted on the patrol car
video. Griffin and McFadzean were not visiting friends in Los Angeles on the day of the
shooting. Instead, they were involved in a drug transaction, during which McFadzean got
shot by an unnamed person. Griffin was driving in search of help and encountered
[Pardue] on the street. Griffin asked [Pardue] to help. “[Pardue] refused to assist,
infuriating all parties in the car, and adding to the bias of the witnesses against him.”
Defense counsel indicated he intended to elicit this evidence through
cross-examination of the prosecution witnesses. [Pardue] told counsel he maintained an
intimate relationship with Griffin while she engaged in drug trafficking with McFadzean,
and if [Pardue] testified, he would likely testify to impeach Griffin’s denial of drug
trafficking and coercion by McFadzean. No explanation was provided in the declaration
for the presence of the duffel bag in Griffin’s backyard that contained ammunition,
[Pardue’s] parole card, and photographs of a sexual nature depicting Griffin and
[Pardue].
Defense counsel also stated he intended to call as a witness a prison inmate,
Rosalee Barfield, who was in custody on an unrelated case. Counsel for Barfield told
[Pardue’s] counsel Barfield would not speak with [Pardue’s] investigator. However,
according to [Pardue], if Barfield testified, and if she did so truthfully, she would testify
that the coat containing thousands of dollars had been in her possession until McFadzean
and Griffin took it from her by assaulting her with a handgun earlier on the day Morris
was shot.
The trial court issued an order allowing the defense to impeach Griffin with two
convictions of a crime of “moral turpitude” stemming from the federal smuggling case
but excluding the other proffered evidence on the grounds that [Pardue] failed to make a
sufficient showing of relevance and, even assuming relevance, the evidence, including
the prosecution’s response, would require undue consumption of time on collateral issues
under Evidence Code section 352. The court also noted, “counsel now indicates that Ms.
G[.], having been apprised of her statements in [Pardue’s] motion, now ‘recants’ such
statement. This court is concerned with [Pardue’s] propensity to expand this proceeding
into areas well beyond the ambit of this trial.”
Pardue, 2014 WL 1571806, at *9-10.
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It is well settled that, under the Sixth Amendment, an accused has the right to present
witnesses, testimony and other evidence in his defense. See Washington v. Texas, 388 U.S. 14,
19 (1967). However, “[t]he accused does not have an unfettered right to offer testimony that is
incompetent, privileged, or otherwise inadmissible under standard rules of evidence.” Taylor v.
Illinois, 484 U.S. 400, 409-10 (1988). States have considerable latitude under the Constitution to
establish rules excluding evidence from criminal trials. Holmes v. S. Carolina, 547 U.S. 319,
324 (2006). “Thus, a trial judge may exclude or limit evidence to prevent excessive
consumption of time, undue prejudice, confusion of the issues, or misleading the jury. The trial
judge enjoys broad latitude in this regard, so long as the rulings are not arbitrary or
disproportionate.” Menendez v. Terhune, 422 F.3d 1012, 1033 (9th Cir. 2005) (citations
omitted); see Montana v. Egelhoff, 518 U.S. 37, 42-43 (1996) (holding due process rights are not
violated by exclusion of relevant evidence where probative value is outweighed by danger of
prejudice or confusion).
Federal Rule of Evidence 403, the federal counterpart to California Evidence Code
section 352, permits the exclusion of evidence if its probative value is “substantially outweighed
by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.” “A district court is accorded a
wide discretion in determining the admissibility of evidence under the Federal Rules. Assessing
the probative value of [the proffered evidence], and weighing any factors counseling against
admissibility is a matter first for the district court’s sound judgment under Rules 401 and
403 . . . .” United States v. Abel, 469 U.S. 45, 54 (1984); see Boyd v. City and Cnty. of San
Francisco, 576 F.3d 938, 948 (9th Cir. 2009). California employs a similar rule. See People v.
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Harris, 118 P.3d 545, 565 (Cal. 2005) (“We review for abuse of discretion a trial court’s rulings
on the admissibility of evidence.”).
Under these guidelines, this Court cannot find that the trial court’s denial of Pardue’s
request was an abuse of discretion or unreasonable or contrary to federal law. As an initial
matter, the Supreme Court has not yet “squarely addressed” whether a state court’s discretionary
exclusion of evidence can ever violate a defendant’s right to present a defense. See Moses v.
Payne, 555 F.3d 742, 758-59 (9th Cir. 2008) (considering challenge to state evidentiary rule
allowing discretionary exclusion of expert testimony favorable to defendant); see also Brown v.
Horell, 644 F.3d 969, 983 (9th Cir. 2011) (noting that no Supreme Court case has squarely
addressed this issue since Moses). Thus, the Court of Appeal’s decision could not have
contravened clearly established federal law under AEDPA. Id.; see Wright v. Van Patten, 552
U.S. 120, 125-26 (2008).
Moreover, to the extent that clearly established federal law is implicated by such a claim,
federal law requires that a petitioner demonstrate that the trial court excluded “trustworthy and
necessary exculpatory testimony.” Cudjo v. Ayers, 698 F.3d 752, 754 (9th Cir. 2012) (citing
Chambers v. Mississippi, 410 U.S. 284, 300-01 (1973). A petitioner must show that the thirdparty evidence was “inconsistent with” and “raise[d] a reasonable doubt of” his guilt. Holmes,
547 U.S. at 327. Pardue fails to meet this standard as the excluded evidence “d[id] not
sufficiently connect the other person to the crime” and “d[id] not tend to prove or disprove a
material fact in issue at [his] trial.” Id. As the Court of Appeal persuasively reasoned:
Here, the defense did not make an offer of proof as to who would testify about the
supposed drug transaction at the time of McFadzean's shooting or the supposed third
party shooting of McFadzean. The defense merely said that, if [Pardue] testified, he
would impeach Griffin should she “deny the allegations of drug trafficking and coercion
-24-
by Mark McFadzean.” But drug trafficking and coercion were collateral matters which
the trial court correctly noted would consume time unnecessarily. The coat with drug
money was also collateral. Furthermore, the supposed testimony of prison inmate
Rosalee Barfield, assuming she did not invoke her Fifth Amendment right against
self-incrimination and assuming she testified as defendant hoped, would not speak to the
shooting.
Not only did the defense fail to provide direct or circumstantial evidence linking
the purported unknown third party drug dealer to the shooting of McFadzean, but the
defense theory of this phantom shooter was farfetched and incapable of raising a
reasonable doubt. According to this theory, the shooting occurred during a drug
transaction unrelated to [Pardue] , a drug transaction to which Griffin brought her teenage
daughter. After the shooting, Griffin happened to drive by [Pardue] as she was driving
around with the unconscious McFadzean, who had a shattered artery that was gushing
blood. Although McFadzean was dying, after a chance encounter with [Pardue], he
developed a plan on the fly to blame [Pardue] for the shooting so [Pardue] would no
longer be in Griffin’s life and coerced Griffin and her daughter to participate in this
conspiracy to frame [Pardue]. All of this occurred between the earlier events of the day
where [Pardue] waved a gun and expressed anger about Griffin’s relationship with
McFadzean and the later discovery by police of [Pardue’s] duffel bag containing
additional rounds of ammunition in back of the home where [Pardue] lay in wait for
Griffin to return home with McFadzean—a circumstance that was not mentioned in
[Pardue’s] offer of proof.
[Pardue] points out that no witness, other than Griffin and McFadzean, testified
that [Pardue] shot McFadzean. This is true, but as we have noted, other witnesses did
testify that hours before shooting McFadzean, [Pardue] was at Griffin’s house, armed
with a gun and furious about Griffin’s relationship with McFadzean. And [Pardue’s]
own witness, his niece, placed him outside her residence with Griffin and McFadzean
shortly before a police officer saw McFadzean in Griffin’s maroon car bleeding from a
gunshot wound. The officer testified Griffin waved him down around 1:20 a.m. on
March 3, 2008. [Pardue’s] niece testified for the defense that during the “early morning
hours” of March 3, 2008, she saw [Pardue] arguing in the street with Griffin near a
burgundy car, which she had seen both [Pardue] and Griffin driving in the past. Griffin’s
teenage daughter was also there. According to the niece, either [Pardue] or Griffin
knocked on her door. This is obviously inconsistent with [Pardue’s] offer of proof,
presented in his attorney’s declaration, that [Pardue] refused to get involved when Griffin
drove by searching for help for the wounded McFadzean and saw [Pardue] on the street.
That the niece denied hearing a gunshot is inconsequential.
The proffered evidence simply was not capable of raising a reasonable doubt of
[Pardue’s] guilt. Further, there was no evidence the unknown third party drug dealer
even existed, and if he did, whether he had an opportunity to commit the shooting; nor
was there direct or circumstantial evidence linking this unknown person to the shooting.
Pardue, 2014 WL 1571806, at *11-12.
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Finally, the trial court acted well within its discretion and within the bounds of the
Confrontation Clause in determining that the limited probative value of the evidence was
outweighed by the undue consumption of time that the presentation of such evidence would
require as well as the danger of confusion to the jury. See United States v. Scheffer, 523 U.S.
303, 314 (1998) (noting that “collateral litigation prolongs criminal trials and threatens to
distract the jury from its central function of determining guilt or innocence”). For the foregoing
reasons, Pardue is not entitled to relief on this claim.
C.
Ineffective Assistance of Counsel (Ground Three)
Pardue additionally alleges that trial counsel rendered ineffective assistance when he
failed to object to the trial court’s sanitizing of the prosecution witnesses’ prior convictions for
impeachment purposes. The Court of Appeal summarized the following background:
The defense moved in limine to impeach Griffin and McFadzean with prior
convictions, as follows: (1) As to Griffin—1997, solicitation of lewd act; 2006, federal
conviction of conspiracy to provide an inmate with a prohibited object, possession of
heroin with intent to distribute, and possession of marijuana with intent to distribute.
(2) As to McFadzean—1990, aid/abet unlawful entry; 1992, theft, sexual assault, and
fraud; 1993, battery and robbery; 1995, trespass to vehicle and cocaine possession; 1996,
sexual assault and possession of stolen car; 1997, possession of stolen car; 1998,
possession of stolen car; and 1999, armed robbery and bank robbery.
The trial court also ruled that [Pardue’s] prior convictions would be admitted if he
testified, but as requested by the defense, the convictions would be sanitized by calling
them crimes of moral turpitude.13 As for the prosecution witnesses, the prosecution asked
that the court sanitize their prior convictions just as it had done for [Pardue], and the trial
court granted that request. Ultimately, four witnesses—two prosecution witnesses
(Griffin and McFadzean) and two defense witnesses ([Pardue’s] niece and
brother)—admitted prior convictions or adjudication involving “moral turpitude.”
FN13. Ultimately, [Pardue] did not testify.
Pardue, 2014 WL 1571806, at *12.
-26-
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
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, Pardue 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,
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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).
In this case, Pardue fails to satisfy either prong. He cannot show that his counsel’s
performance was deficient because, as the Court of Appeal reasonably concluded, counsel made
a reasonable tactical decision not to object to sanitizing because “[Pardue’s] own witnesses had
prior records which defense counsel may have preferred not to name, including [Pardue] if he
chose to testify.” Pardue, 2014 WL 1571806, at *13. Pardue has failed to overcome the strong
presumption that his counsel’s acquiescence was a tactical decision which this Court may not
second-guess. Harrington v. Richter, 562 U.S. 86, 104 (2011); Strickland, 466 U.S. at 690-91.
Nor can he show prejudice. The Court of Appeal found that “[t]he evidence against
[Pardue] was compelling” and that it was “not reasonably probable [Pardue] would have
obtained a better result had the prior convictions not been sanitized as crimes of moral
turpitude.” Pardue, 2014 WL 1571806, at *13. This conclusion is both reasonable and fully
supported by the record, which reflects that four witnesses testified to his crimes and that Pardue
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fled the state after the crimes and made admissions of guilt.8 Consequently, Pardue cannot
prevail on his ineffective assistance claim.
D.
Prosecutorial Misconduct (Ground Four)
Finally, Pardue avers that the prosecutor committed misconduct during summation in a
number of ways. Federal habeas review of prosecutorial misconduct claims is limited to the
narrow issue of whether the alleged misconduct violated due process. See Darden v.
Wainwright, 477 U.S. 168, 181 (1986). To prevail on such a claim, a petitioner must show that
the prosecutor’s conduct “so infected the trial with unfairness as to make the resulting conviction
a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). Moreover,
“[o]n habeas review, constitutional errors of the ‘trial type,’ including prosecutorial misconduct,
warrant relief only if they ‘had substantial and injurious effect or influence in determining the
jury’s verdict.’” Wood v. Ryan, 693 F.3d 1104, 1113 (9th Cir. 2012) (quoting Brecht v.
Abrahamson, 507 U.S. 619, 637-38 (1993)).
Indeed, counsel are given latitude “in the presentation of closing arguments,” and courts
must allow prosecutors “to strike hard blows based on the evidence presented and all reasonable
inferences therefrom.” Ceja v. Stewart, 97 F.3d 1246, 1253-54 (9th Cir. 1996) (quoting United
States v. Baker, 10 F.3d 1374, 1415 (9th Cir. 1993)); United States v. Molina, 934 F.2d 1440,
8
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. 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 Pardue in finding that any error was 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.
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1445 (9th Cir. 1991) (noting that a prosecutor must have “reasonable latitude” to fashion closing
arguments). A reviewing court should consider challenged remarks in light of the realistic
nature of closing arguments at trial. In determining whether remarks rendered a trial
fundamentally unfair, a court must judge the remarks in the context of the entire proceeding to
determine whether the argument influenced the jury’s decision. Boyde v. California, 494 U.S.
370, 385 (1990); Darden, 477 U.S. at 179-82. 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).
As an initial matter, the Court of Appeal rejected Pardue’s first four arguments listed
below due to a failure to object at trial. Consequently, because the state appellate court found
these contentions forfeited under California’s contemporaneous objection rule, they are
procedurally defaulted from federal habeas review. Coleman, 501 U.S. at 729-30 (a federal
court will not review a claim if the state court’s rejection of the claim rests on a state law ground
that is independent of the federal question and adequate to support the judgment). The Ninth
Circuit has repeatedly recognized and applied the California contemporaneous objection rule in
affirming denial of a federal habeas petition on grounds of procedural default where there was a
complete failure to object at trial. See, e.g., Inthavong v. Lamarque, 420 F.3d 1055, 1058 (9th
Cir. 2005); Paulino v. Castro, 371 F.3d 1083, 1092-93 (9th Cir. 2004). Moreover, even if the
arguments were not procedurally defaulted, Pardue would not be entitled to relief on them
because, as discussed in further detail below, they, like the fifth and final argument which is not
defaulted, are without merit.
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1.
Argument regarding disbelieving the prosecution witness
Pardue first argues that the prosecutor misstated the burden of proof by arguing that
acquittal would require wholesale rejection of the testimony of all of the prosecution witnesses.
During his argument, the prosecutor summarized the testimony of the prosecution witnesses,
after which he commented that “you have to say I don’t believe all of these people to find
[Pardue] not guilty.” The Court of Appeal rejected Pardue’s claim, concluding that it was
“confident the jury would understand the prosecutor’s remarks, not as reducing the burden of
proof, but as legitimate comment on the prosecutor’s perception of the strength of the
prosecution’s case.” Pardue, 2014 WL 1571806, at *16. This Court finds that the state court’s
conclusion was not unreasonable. “While it is clear that prosecutors cannot express their opinion
about a defendant’s guilt, . . . a prosecutor is free to voice doubt about the veracity of a
defendant’s story.” Dubria v. Smith, 224 F.3d 995, 1004 (9th Cir. 2000) (citations omitted); see
also United States v. Molina, 934 F.2d 1440, 1444 (9th Cir. 1991) (noting that the inference that
one side is lying is unavoidable).
2.
Argument regarding D.W. not testifying
Pardue also alleges that the prosecutor committed misconduct by telling the jury that
D.W. was too traumatized to testify and by telling the jurors what her testimony would have
been had she testified. However, contrary to Pardue’s contention, the record does not reflect that
the prosecutor told the jury what D.W.’s testimony would have been. Rather, as the Court of
Appeal concluded, the prosecutor merely stated that, if D.W.’s testimony would have been
different from her previous statements, the defense would have called her as a witness.
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Consequently, the appellate court’s rejection of the claim was reasonable and consistent with
federal law. See
United States v. Williams, 990 F.2d 507, 510 (concluding that “[b]ecause the defense counsel
‘opened the door’ to the issue of the uncalled witness, the prosecutor’s reply was permissible”);
see also United States v. Cabrera, 201 F.3d 1243, 1250 (9th Cir. 2000) (“A prosecutor’s
comment on a defendant’s failure to call a witness does not shift the burden of proof, and is
therefore permissible, as long as the prosecution does not . . . comment[] on the defendant’s
failure to testify”).
3.
Comments regarding Pardue not going to the police
Pardue next complains that the prosecutor commented on his exercise of his right not to
discuss the case with the police after suspicion focused on him. A suspect has a constitutional
right not to speak to police after he is arrested and given his Miranda warnings. Miranda v.
Arizona, 384 U.S. 436, 479 (1966). As a consequence of that right, prosecutors are prohibited
from commenting on a defendant’s post-Miranda silence. Doyle v. Ohio, 426 U.S. 610, 618-19
(1976); United States v. Lopez, 500 F.3d 840, 844 (9th Cir. 2007) (prosecutor’s comment on
defendant’s post-Miranda silence violates Doyle). The rationale for this rule “rests on the
fundamental unfairness of implicitly assuring a suspect that his silence will not be used against
him and then using his silence to impeach an explanation subsequently offered at trial.”
Wainwright v. Greenfield, 474 U.S. 284, 291 (1986) (citation and internal quotation marks
omitted) (holding that prosecution may not use defendant’s silence during case-in-chief).
Generally speaking, however, prosecutors are allowed to comment on a defendant’s
pre-arrest silence. Jenkins v. Anderson, 447 U.S. 231, 240-41 (1980); United States v. Oplinger,
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150 F.3d 1061, 1067 (9th Cir. 1998) (“[N]either due process, fundamental fairness, nor any more
explicit right contained in the Constitution is violated by the admission of the silence of a person,
not in custody or under indictment, in the face of accusations of criminal behavior.”) (internal
quotation marks and citation omitted), overruled on other grounds, United States v. Contreras,
593 F.3d 1135 (9th Cir. 2010) (en banc).
Here, as the Court of Appeal reasonably found, “the prosecutor . . . commented on
[Pardue’s] failure to come forward prearrest, when he apparently saw on the news that his
girlfriend was accusing him of kidnapping their daughter.” Pardue, 2014 WL 1571806, at *18.
Thus, the prosecutor’s comment did not implicate due process. Jenkins, 447 U.S. at 240-41;
Oplinger, 150 F.3d at 1067. The state court therefore reasonably rejected Pardue’s argument.
4.
Argument regarding Santa Claus
Pardue additionally complains that the prosecutor stated in rebuttal argument that “if you
believe that [Pardue] is not guilty, then you must believe in Santa Claus. You must not be using
your common sense.” But again, as the Court of Appeal reasonably found, “[t]he argument in no
way minimized the burden of proof” because it “merely suggested gullibility as the only means
to disregard the overwhelming evidence.” Pardue, 2014 WL 1571806, at *19. Pardue’s
argument to the contrary is plainly without merit.
5.
Comment regarding defense counsel
Finally, Pardue contends that the prosecutor accused defense counsel of trying to mislead
the jurors. The Court of Appeal summarized the following argument:
“Another thing [defense counsel] said was, [w]ell, since this is a circumstantial
evidence case, there’s two ways you can think about it. And then, if you think . . . there’s
some evidence that he’s innocent, then you must find him innocent.
“But . . . this is a direct evidence case. This is not a circumstantial evidence
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case . . . . [¶] . . . [¶]
“This is direct evidence. You have witnesses that said, No, I saw [Pardue] shoot
the gun. I saw [Pardue] make the threats. I saw [Pardue] with my own eyes do all these
crimes. There’s no circumstantial evidence in this case, ladies and gentlemen. So you’re
not doing this [‘]either or[’] that [defense counsel] was talking [sic]. He’s trying to fool
you. He’s trying to pull the wool over your eyes.
Pardue, 2014 WL 1571806, at *19.
But contrary to Pardue’s contention, the prosecutor’s statement was directed at the
strength of the defense on the merits and did not amount to an improper disparagement of
defense counsel. See United States v. Ruiz, 710 F.3d 1077, 1086 (9th Cir. 2013) (prosecution’s
characterization of defense’s case as “smoke and mirrors” was not improper where comment was
directed to strength of the case and was not an ad hominem attack on defense counsel) (citation
omitted); People v. Stitely, 108 P.3d 182, 212-13 (Cal. 2005) (prosecutor’s use of “colorful
language” to criticize “counsel’s tactical approach” was not improper where the comments were
“explicitly aimed at counsel’s closing argument and statement, rather than at him personally”).
Accordingly, the state court’s finding that the prosecutor was “describing the deficiencies in
opposing counsel’s tactics” is reasonable and must be upheld on habeas review. See Inthavong,
420 F.3d at 1058-59. Pardue thus fails to advance any meritorious argument in support of his
prosecutorial misconduct claim.
V. CONCLUSION AND ORDER
Pardue 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
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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 8, 2016.
/s/James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge
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