Lockhart v. Hedgpeth
Filing
40
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND CERTIFICATE OF APPEALABIITY. Signed by Judge JEFFREY S. WHITE on 3/26/13. (jjoS, COURT STAFF) (Filed on 3/26/2013)
1
2
3
4
5
6
7
8
IN THE UNITED STATES DISTRICT COURT
9
FOR THE NORTHERN DISTRICT OF CALIFORNIA
10
11
12
ERIC LOCKHART,
Petitioner,
13
14
15
vs.
TONY HEDGPETH, Warden,
Respondent.
16
17
18
)
)
)
)
)
)
)
)
)
)
)
No. C 08-2935 JSW (PR)
ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS AND
CERTIFICATE OF APPEALABILITY
INTRODUCTION
19
Petitioner, a prisoner of the State of California, has filed a habeas corpus petition
20
pursuant to 28 U.S.C. § 2254. Respondent was ordered to show cause why the petition,
21
setting forth eleven claims, should not be granted. Respondent filed an answer to the
22
petition, and petitioner filed a traverse. Petitioner was then granted a stay in order to
23
exhaust one more claim in state court, and after he did so, the stay was lifted and the
24
petition amended to include the new claim. Thereafter, Respondent’s motion to dismiss
25
the new claim on the grounds of procedural default was granted. Petitioner’s original
26
eleven claims are now addressed, and for the reasons discussed below, the writ is
27
DENIED.
28
1
2
BACKGROUND
I.
3
Procedural Background
A jury in Alameda County Superior Court found petitioner and his co-defendant
4
Antonio Harris guilty of first-degree murder with the special circumstance that the
5
murder was committed during the commission of a robbery. The jury also found true
6
allegations that Petitioner was armed with a firearm. On December 12, 2003, the trial
7
court sentenced Petitioner and Harris to life in prison without the possibility of parole.
8
The California Court of Appeal affirmed, and the Supreme Court of California denied
9
review. Petitioner filed unsuccessful habeas petitions in all three levels of the
10
California courts.
11
II.
12
13
14
Factual Background
The California Court of Appeal summarized the facts and procedural background
of the case as follows:
17
An amended information charged Lockhart and [co-defendant]
Harris with the murder of Gerald Brown (Cal. Penal Code § 187) and the
special circumstance that they committed the murder while engaged in the
commission of a robbery (§ 190.2, subd. (a)(17)(A)). It was further
alleged that they were armed with a firearm (§ 12022, subd. (a)(1)), that
Harris had three prior felony convictions and a prior prison term (§ 667.5,
subd. (b)), and that Lockhart had one prior felony conviction.
18
A.
19
24
Lockhart filed a motion to sever his trial from Harris's, or to redact
or exclude three statements made by Harris to the police. (See [People v.
Aranda, 65 Cal.2d 518 (1963)]) Harris joined in Lockhart's motion,
seeking to exclude his own statements. After the prosecutor agreed not to
introduce two of Harris's statements that directly implicated Lockhart by
name, the trial court concluded that the third of Harris's statements
contained no reference to Lockhart or his existence. On this basis, the
court ruled that the admission of the statement would not abridge
Lockhart's Sixth Amendment rights and denied the severance motion. The
court again denied Lockhart's motion to sever when reargued about three
weeks later, and the matter proceeded to trial.
25
B.
26
Brown was found shot to death in his car in front of his Oakland
residence just after midnight on May 15, 2000. The prosecution's theory
15
16
20
21
22
23
27
28
MOTION TO SEVER
PROSECUTION CASE
2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
was first degree felony murder: specifically, that Brown was shot while
Lockhart and Harris were robbing him.
1.
Pauline Coleman's Testimony: The Plan to Rob Brown
Over a number of years, Pauline Coleman and Lockhart lived
together, had a child, and used drugs including cocaine, powder heroin,
and methadone. Lockhart gave Coleman a ring and asked her to marry
him, but in 1998, they pawned the ring at Maxferd's Jewelry store to pay
bills and buy drugs. Toward the end of 1999, they had an off-and-on
relationship, and Lockhart moved out to live with someone else.
Coleman and Lockhart frequently purchased rock cocaine from
victim Brown. At times, Brown drove to Coleman's house in a white car
to deliver the cocaine, but twice Coleman and Lockhart picked up drugs
from Brown at his home at 5555 Bancroft Avenue in Oakland. Coleman
paid Brown for the drugs with cash or, as Lockhart discovered by March
2000, with sex. In addition, Coleman introduced Brown to Lakisa
Boatley, a friend with whom she used drugs on a regular basis. Boatley
became Brown's girlfriend.
On one occasion, Brown fronted Coleman $25 worth of drugs in
exchange for a pendant, which he kept as collateral. Coleman could regain
the pendant only by paying Brown $50, which they agreed she would do
in April 2000. When the money was due, however, Coleman was in jail.
When she had not paid by May 1, 2000, Brown increased the debt to $75
and pressured her to pay.
On the afternoon of May 14, 2000, Lockhart called Coleman and
said he was coming over to pick up his clothes. Late that evening, he
arrived in a burgundy Falcon driven by “Rod” Albritton, Boatley's former
boyfriend. Lockhart got his clothes from the house and went back outside
with Coleman. Privately, he asked her whether Brown was “still rolling”
(selling drugs) and indicated that Brown would be easy to rob and he was
thinking of doing so. Lockhart also said he might beat Brown up. Earlier
that year as well, Lockhart had told Coleman that Brown would be easy to
rob.
26
Lockhart asked Coleman to telephone Brown and get him out of
his apartment so Lockhart could rob him. Coleman proposed that she call
Brown about the money she still owed, explaining how she now owed
$75. Appearing “pissed,” Lockhart claimed the pendent was worth more
than she got in drugs and she should not have pawned it, especially since
she was already giving Brown sex for drugs. At Lockhart's suggestion,
Coleman agreed to call Brown, at a time of Lockhart's choosing, and tell
Brown she would meet him at the Vintage Inn with $50 of the $75.
Lockhart said he had a gun, and although he did not show it to her, she
had seen him with a gun previously. In discussing the robbery plans,
Lockhart referred to “me and my partner,” gesturing to Albritton in the
car. After his conversation with Coleman, Lockhart left with Albritton.
27
Twenty minutes later, Coleman telephoned Brown to see where he
21
22
23
24
25
28
3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
was. During the conversation, Coleman's call-waiting line clicked; she
answered the other line and found it was Lockhart, who told her not to tell
Brown to meet yet. She complied. About two hours later, Coleman
received another call from Lockhart, instructing her to set up the meeting
with Brown. Ten minutes later, Lockhart called again and, finding that
Coleman had not yet telephoned Brown, became irritated and directed her
to do so.
Coleman called Brown at his house. Boatley answered the phone,
and Coleman asked to speak to Brown. Coleman told him she had $50 of
the $75 and could meet him at the Vintage Inn. He agreed to meet her in
five minutes.
About thirty minutes later, Coleman received a call from Brown at
the Vintage Inn, asking where she was. Coleman claimed the person who
was supposed to bring her the $50 had not arrived. They did not speak again.
2.
Enzore Savage's Testimony: Observation of Lockhart and Harris
Enzore Savage, maintaining that he was testifying against his will
and that he feared Lockhart and Lockhart's brother, Michael, recounted
his observations the night of May 14. Hearing voices outside his
apartment near 5555 Bancroft Avenue, he went outside and saw two men
sitting at the side of the building. Savage asked what was going on, and
one of the men replied they were not doing anything. Savage returned to
his apartment. At trial, he stated that the two men were Harris and
Lockhart.
An hour or so later, Savage heard a sound like “rapping” on a steel
door. He looked out his bedroom window and saw Harris standing at the
passenger side of a light-colored Lincoln (which, it was later determined,
belonged to Brown). Lockhart was standing about 20 yards away from
Harris. A blue Cadillac was parked nearby. Lockhart said to Harris,
“Come on, let's get the fuck out of here.” Harris walked away. The car
door of the Lincoln was left open.
23
On the night of the shooting, Savage gave police a physical
description of the two men but did not say he recognized them. In a May
22, 2000 lineup, he identified Harris as the person standing closest to the
victim's car. In a later lineup, Savage recognized Lockhart but did not tell
police, indicating instead that two others in the lineup might have been
one of the perpetrators. At the preliminary hearing, consistent with his
trial testimony, Savage admitted that he had known Lockhart for 15 years
and recognized him as one of the perpetrators, but placed Harris as the
one closest to Brown's car.
24
3.
20
21
22
25
Frankie Lee Bonner: Gunshots and Harris's Blue Cadillac Near
Brown's Car
27
At about 11:05 p.m. on May 14, Frankie Lee Bonner saw from her
apartment at 5555 Bancroft Avenue a blue Cadillac “that didn't belong on
the block” drive by. Around midnight, she heard six to eight gunshots.
28
4
26
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
Looking out her window, she called the police and observed the same blue
Cadillac return, pull next to a white car, and then speed away. The door to
the white car was open, and a leg was hanging out. There were (bullet)
holes in the car windows and door.
4.
Officer Thurston and the Contents of Brown's Car
At approximately midnight, Oakland Police Officer D'vour
Thurston was dispatched to 5555 Bancroft regarding a possible shooting.
Inside the white Lincoln, the officer observed a man, later identified as
Brown, on his stomach across the passenger seat. He had been shot
several times.
Brown's leather coat, wallet, and briefcase were visible inside the
car. Brown had $21 in cash in the front pocket of his shirt. Drugs and a
nylon bag, containing more money, were also found in the car.
5.
Officer Medeiros's Testimony: Police Investigation
Oakland Police Sergeant Brian Medeiros arrived at the scene at
1:15 a.m. on May 15. He determined that Brown, Boatley, and Carnell
Melton lived together in the apartment complex at 5555 Bancroft Avenue,
where Brown's Lincoln was parked.
The police walked across the street to Savage's apartment and
interviewed him. Savage's subsequent written statement, which was read
to the jury at trial, gave an account consistent with his trial testimony.
Medeiros confirmed that Brown's white Lincoln was observable from
Savage's bedroom window in a well-lit area.
At the scene, Boatley advised police that Coleman had telephoned
Brown just before he left his apartment. In a search of Brown's room,
police found Coleman's name, phone numbers, and address.
25
Sergeant Medeiros and Sergeant Lou Cruz interviewed Coleman
later that day at the police station. Initially, Coleman admitted making the
telephone call to Brown but denied any involvement in a robbery. She
claimed a friend named Seth agreed to give her $50 to pay Brown for the
narcotics he fronted. She called Brown and told him to meet at the
Vintage Inn, but Seth “stood her up.” After Sergeant Medeiros accused
Coleman of lying and withholding information, she admitted that
Lockhart had asked her to tell Brown she would meet him at the Vintage
Inn, but she denied her role was to get Brown out of his apartment.
Eventually, Coleman admitted that Lockhart told her to call Brown as a
means of luring him out of his apartment in order to rob Brown, adding
that Lockhart first talked about robbing Brown when he found out
Coleman had been sleeping with him. As Sergeants Medeiros and Cruz
drove Coleman home, she stated that Lockhart had asked if she wanted to
be there for the robbery, but she had declined.
26
6.
19
20
21
22
23
24
Further Testimony From Coleman: Lockhart's Admission
27
28
5
1
2
3
4
5
On May 16, after Coleman had been questioned by police, she
received a telephone call from Lockhart. When she said she did not want
to speak with him, Lockhart said he was sorry and “it wasn't supposed to
happen like that.” He claimed the gun jammed and “went off.” When
Coleman warned Lockhart that the police were looking for him, Lockhart
responded: “They don't know it's me.” Coleman replied, “They do.”
7.
Harris's Cadillac Located
8
On May 18, 2000, Sergeant Medeiros contacted and interviewed
Albritton, who described Harris's vehicle and claimed it was located at an
address on 32nd Street in Oakland. The next morning, Sergeant Medeiros
went to the location and observed a 1981 light blue Cadillac, matching the
description of the car seen at the time of the murder. Sergeant Medeiros
confirmed that the Cadillac was registered to Harris.
9
8.
6
7
10
Harris's Statement to Police
12
On May 19, Sergeant Medeiros and another officer interviewed
Harris. In a taped interview played for the jury, Harris stated that around
11:30 p.m. on Sunday (May 14), he drove to 55th and Bancroft, knowing
a robbery was going to be committed and expecting to receive $150 to
$200. Shortly after arriving, he heard gunshots and drove away.
13
9.
14
In a physical lineup on May 22, 2000, Savage identified Harris as
the man who stood by the passenger door of Brown's white Lincoln.
11
15
16
17
18
19
20
Lineups of Harris and Lockhart and Savage's Identification
Lockhart was arrested the next day. In a six person lineup
including Lockhart, Savage indicated two of the people might have been
one of the perpetrators; neither of them was Lockhart. Three weeks later,
however, Savage called Sergeant Medeiros, stated he remembered
Lockhart, asked if Lockhart was in position number one in the lineup
(Lockhart was actually number three), and claimed he was afraid of
Lockhart's older brother Michael.
10.
Joshua Litz's Testimony: Harris Pawned Brown's Jewelry
24
Joshua Litz, the manager of Maxferd's Jewelry, testified that on
May 15, 2000, at 12:44 p.m.-about 12 hours after Brown's death-Harris
produced a California's drivers license and thumb print for identification
and pawned four pieces of jewelry. Coleman, Boatley, and Melton
identified the jewelry as Brown's. The police crime laboratory concluded
that fingerprints on the Maxferd's pawn slips belonged to Harris.
According to Maxferd's records, Lockhart and Coleman had previously
done business there as well.
25
11.
26
27
An autopsy determined that Brown had sustained two gunshot
wounds to the upper left chest and one to the back of the left forearm and
28
6
21
22
23
Autopsy and Bullets
1
3
that multiple bullet wounds were the cause of his death. Four cartridge
cases found in Brown's Lincoln were .380 auto caliber and had been
discharged from the same firearm. Two bullets, one recovered from
Brown's body, were also .380 auto caliber and fired from the same gun.
The gun was not recovered.
4
12.
5
On July 17, 2000, Alameda County Sheriff Deputy Wellington
Wong was dispatched to a San Leandro residence and spoke to Tonisha (a
relative of Boatley), who showed him a possum, human feces, and a note
that were left at her front door. The note read: “Keysa, snitch ass bith
[sic].” Tonisha stated that Keysa (Boatley) had been staying there after
Brown's murder.
2
6
7
8
9
Intimidation of Witness Boatley
At trial, Boatley asserted that she was afraid to testify because of
the note. She acknowledged that Lockhart had not threatened her directly.
10
13.
11
On September 23, 2003, investigator Clint Ojala served an arrest
warrant on Savage to secure his availability for trial. Savage became very
upset and stated he was not going to court. Further, he claimed, since
Lockhart's brother Michael had been released from prison, he had
received threats at his house and was afraid for his family if he testified.
Savage was sure that if he testified he or his family would be killed.
12
13
14
15
16
17
18
19
20
21
22
23
C.
Efforts to Secure Savage's Testimony
APPELLANT LOCKHART’S CASE
Lockhart did not testify. He called as a witness Oakland Police
Officer Deandrea Vantree, who described her interview of Boatley on
May 15, 2000. In the interview, Boatley claimed the shooting occurred
between 12:30 and 12:45 a.m., and did not mention Coleman's name or
that Brown had received any telephone calls that evening.
Oakland Police Officer Christopher Bolton testified that he spoke
to Melton on May 15, and Melton did not say whether Brown had
indicated he was going out that evening. In her statement to police,
Melton said she was not awakened by any disturbances that night.
Lockhart also introduced several witnesses who vouched for his
reputation for honesty and nonviolence. In addition, it was stipulated that
Lockhart was convicted in 1990 for the felony sale of narcotics (Health &
Saf. Code, § 11352).
24
People v. Lockhart, No. A105200, 2006 WL 1280643, **1-6 (Cal. Ct. App. May 10,
25
2006) (footnotes omitted).
26
27
28
STANDARD OF REVIEW
A district court may not grant a petition challenging a state conviction or
7
1
sentence on the basis of a claim that was reviewed on the merits in state court unless the
2
state court’s adjudication of the claim: “(1) resulted in a decision that was contrary to,
3
or involved an unreasonable application of, clearly established Federal law, as
4
determined by the Supreme Court of the United States; or (2) resulted in a decision that
5
was based on an unreasonable determination of the facts in light of the evidence
6
presented in the State court proceeding.” 28 U.S.C. § 2254(d). The first prong applies
7
both to questions of law and to mixed questions of law and fact, Williams (Terry) v.
8
Taylor, 529 U.S. 362, 407-09 (2000), while the second prong applies to decisions based
9
on factual determinations, Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
10
A state court decision is “contrary to” Supreme Court authority, that is, falls
11
under the first clause of § 2254(d)(1), only if “the state court arrives at a conclusion
12
opposite to that reached by [the Supreme] Court on a question of law or if the state court
13
decides a case differently than [the Supreme] Court has on a set of materially
14
indistinguishable facts.” Williams (Terry), 529 U.S. at 412-13. A state court decision is
15
an “unreasonable application of” Supreme Court authority, falling under the second
16
clause of § 2254(d)(1), if it correctly identifies the governing legal principle from the
17
Supreme Court’s decisions but “unreasonably applies that principle to the facts of the
18
prisoner’s case.” Id. at 413. The federal court on habeas review may not issue the writ
19
“simply because that court concludes in its independent judgment that the relevant state-
20
court decision applied clearly established federal law erroneously or incorrectly.” Id. at
21
411. Rather, the application must be “objectively unreasonable” to support granting the
22
writ. Id. at 409.
23
Under 28 U.S.C. § 2254(d)(2), a state court decision “based on a factual
24
determination will not be overturned on factual grounds unless objectively unreasonable
25
in light of the evidence presented in the state-court proceeding.” Miller-El, 537 U.S.
26
322 at 340. When there is no reasoned opinion from the highest state court to consider
27
28
8
1
the Petitioner’s claims, the Court looks to the last reasoned opinion. Ylst v.
2
Nunnemaker, 501 U.S. 797, 801-06 (1991).
3
ANALYSIS
4
The petition raises the following ground for relief: (1) the admission of Harris’s
5
confession violated Petitioner’s right to confront witnesses against him;1 (2) the
6
admission of evidence of threats without a limiting instruction violated Petitioner’s due
7
process and Sixth Amendment rights; (3) there was insufficient evidence to support
8
Petitioner’s conviction;2 (4) trial counsel was ineffective in failing to raise the
9
insufficiency of evidence; (5) the admission of a suggestive identification of Petitioner
10
violated his rights to due process; (6) trial counsel’s cross-examination of witnesses
11
regarding Savage’s identification of Petitioner was insufficient; and (7) Petitioner’s
12
constitutional rights were violated by a “biased” jury and the denial of his requests for
13
transcripts and records.
14
1.
Right to Confrontation
15
In his first and second claims, Petitioner argues that the admission of the
16
confession of his co-defendant Harris violated his Sixth Amendment right to confront
17
witnesses against him. First, he claims the evidence was testimonial hearsay barred by
18
Crawford v. Washington, 541 U.S. 36 (2004), and second he claims that the confession
19
implicated him as the leader and perpetrator of the crimes and thus barred by Bruton v.
20
United States, 391 U.S. 123 (1968).
21
Harris made three separate tape-recorded statements to the police on May 19,
22
2000 confessing to his involvement in the crimes. The trial court excluded the first two
23
statements under Bruton because they directly implicated Petitioner. The trial court
24
admitted Harris’s third statement, however, because it did not refer to Petitioner. The
25
26
27
28
1
Claims one and two in the petition are treated together in claim one here.
Claims four, five and six in the petition are treated together in claim three here.
2
9
1
2
3
4
5
6
7
8
9
10
11
12
13
third statement was as follows:
Harris's third taped statement to police-the one played to the jury at
trial-was recorded at 11:32 p.m. and ended at 11:35 p.m. According to
Sergeant Medeiros, the intent was to delete any reference to Lockhart in
this statement and avoid problems under Aranda-Bruton. In pertinent part,
the interview proceeded as follows: “[SERGEANT MEDEIROS]: Okay.
We're just going to ask you a couple of questions. All we want is
yes-or-no answers, okay? All we want is just yes or no for the tape, okay?
The first question would be-and this is going back to Sunday
night-(unintelligible)-about what time was it, just so I can ask the
question? [¶] [HARRIS]: I believe about 11:30 or something. [¶]
[SERGEANT MEDEIROS]: 11:30? [¶] [HARRIS]: Yes. [¶]
[SERGEANT MEDEIROS]: On this past Sunday night at 11:30 p.m., you
drove to the area of 55th and Bancroft, knowing a robbery was going to be
committed, in which you had the expectation of receiving 150 to $200
cash? [¶] [HARRIS]: Yes. [¶] [SERGEANT MEDEIROS]: Shortly after
arriving, you heard gunshots? [¶] [HARRIS]: Yes. [¶] [SERGEANT
MEDEIROS]: Immediately after the shots, you drove away, correct? [¶]
[HARRIS]: Yeah. [¶] SERGEANT MEDEIROS: Sergeant Cruz, any
questions? [¶] SERGEANT CRUZ: I don't have anything. [¶]
[SERGEANT MEDEIROS]: Is that the truth? [¶] [HARRIS]: Yes. [¶]
[SERGEANT MEDEIROS]: Okay.”
People v. Lockhart, 2006 WL 1280643 at *7.
14
The California Court of Appeal denied these claims on the grounds that
15
admission of the Harris’s third statement was harmless beyond a reasonable doubt. Id.
16
at *16. This was not “contrary to” clearly established federal law. See 28 U.S.C. §
17
2254(d)(1)(a). Claims under Bruton and Crawford are subject to harmless error
18
analysis. See United States v. Rashid, 383 F.3d 769, 775-77 (8th Cir. 2004); United
19
States v. Nielsen, 371 F.3d 574, 581 (9th Cir. 2004). The proper standard for harmless
20
error on direct review is whether the error was harmless beyond a reasonable doubt. Id.
21
The Court of Appeal’s conclusion that the error was harmless was also a
22
“reasonable” application of federal law under 28 U.S.C. § 2254(d)(1). The Court of
23
Appeal reasoned as follows:
24
27
If Harris's statement were incriminatory of Lockhart only to the
extent it confirmed that a second person was involved in the robbery, any
error from its admission could only have been harmless as to Lockhart,
even under the strict standard of Chapman v. California (1967) 386 U.S.
18, 87 S.Ct. 824, 17 L.Ed.2d 705 (Chapman ),[] there being otherwise
overwhelming evidence that two people were involved. However, Harris's
28
10
25
26
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
statement pointedly implies that his accomplice was the actual shooter,
whoever that person might be. This fact was incriminating of Lockhart as
no other evidence was. Indeed, Savage's testimony implied that Harris had
been the shooter, and Coleman's was equivocal on this point.
On the question of whether Lockhart aided and abetted a felony
murder, there was no prejudice beyond a reasonable doubt. (See
Chapman, supra, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.) Other
evidence manifestly established that Lockhart had a motive to rob Brown,
planned the robbery, and was present for its execution. Harris's third
statement in no way served to buttress other evidence that Lockhart had
been his accomplice. Once the jury concluded that Lockhart was an
accomplice, the first degree felony murder verdict followed, without any
reference to Harris's statement.
The final question is whether Lockhart could have been prejudiced
on the question of the special circumstance finding. (§ 190.2, subd.
(a)(17)(A).) That is, if Harris's statement helped convince the jury that
Lockhart was the actual shooter, could it have made a difference as to the
findings that Lockhart acted with reckless indifference to human life and
was a major participant in the crime? On the totality of the evidence, we
are persuaded beyond a reasonable doubt that it could not. Since the jury
concluded that Lockhart was Harris's accomplice, it must have done so
because it credited the substantial evidence of Lockhart's motive and his
orchestration of the robbery itself. Under these circumstances, the
additional conclusion that Lockhart was also the shooter could not have
influenced the determination that he had acted with reckless indifference
to human life and was a major participant in the crime. Consequently, the
error here was harmless.[]
People v. Lockhart, 2006 WL 1280643 at *16.
This analysis was reasonable. To begin with, Harris’s statement did not directly
18
implicate Petitioner. At most, Harris suggested that there was an accomplice, but he did
19
not identify Petitioner as that accomplice. Moreover, as the Court of Appeal explained,
20
the other evidence of guilt was very strong. Coleman testified about Petitioner’s
21
repeated plans to rob Brown, about Petitioner’s anger at Brown for having sex with
22
Coleman (Petitioner’s ex-wife), and about Petitioner’s plan to use a gun. She also
23
testified that she lured Brown to the motel to set him up for Petitioner to rob him when
24
Brown was robbed and killed, and that Petitioner called her after the crimes took place
25
and admitted involvement in them. Savage also identified Petitioner as one of the two
26
men near Brown’s car when Brown was shot. In addition, property stolen from Brown
27
28
11
1
was found at a pawn shop in San Francisco that Petitioner had previously used. Based
2
upon this evidence, the California Court of Appeal could reasonably find beyond a
3
reasonable doubt that Petitioner would have been convicted even without Harris’s
4
statement. In addition, and for these same reasons, the statement did not have a
5
substantial and injurious effect on the verdict, and therefore Petitioner cannot establish
6
prejudice to obtain federal habeas relief. See Hernandez v. Small, 282 F.3d 1132, 1144
7
(9th Cir. 2002) (on federal habeas review, the harmless error standard applicable to
8
Confrontation Clause error is whether inadmissible evidence had “substantial and
9
injurious” effect on verdict) (citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).
10
11
2.
Witness Threat Instructions
In his third claim, Petitioner contends that the trial court violated his right to due
12
process by failing to instruct the jury that they could only consider evidence of threats to
13
Boatley and Savage to assess their credibility and not to establish Petitioner’s guilt. He
14
also argues that his Sixth Amendment right to counsel was violated by his attorney’s
15
failure to request such an instruction.
16
17
The California Court of Appeal described the evidence and its use at trial as
follows:
18
1.
19
Before trial, Lockhart moved to preclude the prosecutor from
introducing certain evidence pertaining to Lockhart's brother, Michael.
The prosecutor represented that evidence regarding Michael would be
offered not to imply the guilt of defendant Lockhart, but to show that
prosecution witness Savage had concerns about testifying due to his fear
of Michael. The court deferred the matter to such time as Savage testified.
20
21
22
23
24
25
26
27
28
Background
About three weeks later, the People sought a warrant for Savage's
arrest, to secure his availability for trial. In support of the request,
Sergeant Medeiros asserted that Savage had refused to testify because,
since the preliminary hearing, Michael was asking about him around the
neighborhood and he did not want to be killed. Savage also threatened to
leave town. The warrant was issued.
Savage was brought to court the next day and stated: “I'm not
going to testify on the grounds my life is being endangered.” He
12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
explained: “[w]hen the brother [Michael] was released out of prison, the
first thing he did was went into a shop and started inquiring, ‘Where is
Enzore Savage?’ And it got back to me before the detectives told me.”
Lockhart's counsel asserted that Savage should testify, and the judge
ordered Savage to post a bond to ensure his return to court. Unable to post
bond, Savage spent the night in jail and testified the next day.
2.
Evidence of Intimidation at Trial
At trial, Savage stated he was testifying against his will. He
proceeded to recount the night of the incident, describing how Harris
stood just outside Brown's white Lincoln, and Lockhart stood 20 yards
away, yelling at Harris to leave. For the record, Harris's counsel remarked
that Savage stared at an exhibit and did not look toward the defense table
when asked to identify the suspects in court. The prosecutor added that
Savage had been “testifying at an angle to these men since he began.”
On cross-examination by Harris's counsel, Savage reiterated that he
was brought to court to testify against his will. Asked if his unwillingness
to testify was due to his fear of Lockhart or his family, Savage replied,
“No. Yes.” Asked if it was because he “fear[ed] ... the Lockhart family
and not Mr. Harris,” Savage answered, “Yes and no.”
A few days later, Boatley testified. Among other things, she
asserted that she was afraid and did not want to testify. She explained that
a dead rat with a note attached to it reading, “Die, bitch,” had been left on
her home doorstep. On cross-examination by Lockhart's attorney, Boatley
acknowledged that she had not received any threats from anyone she
knew was acting on behalf of Lockhart. Deputy Wong corroborated
Boatley's account, and a photograph of the objects left on her doorstep
was introduced as well.
Next, the prosecution called inspector Ojala to the stand. The court
advised the jury that his testimony could be considered only for a limited
purpose: “THE COURT: This was a subject of our in-chambers session,
and I think it has some limited relevancy, which would-it's limited to the
testimony of-I believe it's going to be limited to the testimony of Mr.
Savage and how this might bear on his believability. [¶] [THE
PROSECUTION]: And credibility. [¶] THE COURT: And credibility.”
(Italics added.)
24
Inspector Ojala then recounted Savage's reaction to the service of
his arrest warrant, noting that he screamed, hollered, and said he was not
going to court. Savage told Ojala that, since Michael Lockhart had been
released from prison, Savage had received threats at his house. He was
sure that, if he testified, he or his family would be killed.
25
3.
26
27
Outside the presence of the jury, Lockhart's attorney again objected
to Ojala's testimony, on the grounds it improperly portrayed Lockhart as a
28
13
22
23
Lockhart's Further Objection and Court's Reference to Further
Instruction
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
violent person (see Evid.Code, § 1101) and the probative value as to
Savage's credibility was outweighed by the prejudice to Lockhart
(Evid.Code, § 352). Counsel also pointed out there was no evidence
Lockhart was involved in the witness intimidation.
The prosecutor countered that Savage, when testifying, expressed
only a generalized fear, while Ojala's testimony showed “exactly what Mr.
Savage was fearful of” and therefore was properly admitted to show
Savage's state of mind and credibility. The prosecutor argued that, where a
witness has been threatened yet continues to testify in a consistent
manner, the evidence of threats is extremely probative as to the witness's
credibility.
The court indicated that evidence of Savage's fear in testifying was
relevant to his credibility and not inadmissible under Evidence Code
section 352. The judge noted, “I also think this evidence not only explains
his state of mind but his demeanor when he was testifying. He was seated
and almost had his back turned to the Defendants, with his arms folded.
Never made eye-to-eye contact with them.” In addition, the court
contemplated a further instruction of the jury: “I think the Court will give
a limiting instruction. I plan to. And if you have some special instruction
because there is, at this point, no evidence at all that your client, Mr. Eric
Lockhart, is in any way involved, or has made any threats, you know,
through his brother, certainly nothing directly, if he wants a special
instruction to that respect, I'll certainly consider it, Mr. Sherrer [Lockhart's
counsel].” No further limiting instruction was given or requested.
4.
Closing Argument
Harris's attorney argued that Savage identified Harris as the shooter
because he was afraid of Lockhart's brother, Michael. Savage knew
Lockhart was in the lineup, counsel contended, but refused to identify him
because of his fear of Michael. She noted that Savage “wasn't going to
come to court because he'd seen Michael Lockhart around, and he was
scared to death.” As to Savage's demeanor at trial, she remarked: “I want
to point out that Mr. Savage was so frightened to come to court, he
couldn't even face and look at Mr. Harris and Mr. Lockhart. He turned his
head to the wall the whole time. And I submit to you, that fear is more
than sufficient to have Mr. Savage switch who's by the car when he looks
at them and who's 20 yards away going, ‘Come on. Let's go.’ “ In
addition, as to the witness intimidation against Boatley, Harris's counsel
suggested Lockhart was responsible: “Eric Lockhart had the information
to know where Lakisa Boatley was living to make sure that she had a dead
possum and some feces on her step. [¶] And I submit to you, there's an
inference delivered by the guy we heard about, Michael Lockhart, to scare
her from testifying.”
Lockhart's attorney did not object to Harris's arguments. In his own
closing, he pointed out there was no evidence who left the items at
Boatley's doorstep, and Savage's demeanor could have been due to his
anger in being arrested rather than any fear of the defendants.
27
28
14
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
In rebuttal, the prosecutor clarified that the evidence of items left at
Boatley's home was not to be considered as evidence of the defendants'
guilt. Specifically, the prosecutor stated: “Now, Mr. Sherrer tried to down
play the importance of Lakisa Boatley and the possum. I want to address
the possum and why it's before you as evidence. It's not evidence that
these men did it. It's stipulated they were in custody at the time that it
occurred. [¶] What it's offered for, and the only way you consider it, and
the reason you consider it, is you have to weigh the credibility of a
witness that comes forward and testifies before you. If a witness has been
intimidated and still speaks freely, honestly and says, this is what
happened, even though she's been scared, intimidated, that's a factor for
you to consider as to whether or not she's more credible anyway. [¶] She's
terrified. Yet she feels the need to come forward and tell you the truth.
That's why the evidence is admissible. That's why it's there. [¶] I'm not
putting that possum on them. But we know that Ms. Boatley received it.
That wasn't a prosecution ploy. The police didn't put it there. None of
those things are the reason why that possum ends up on her door step. [¶]
It's there because somebody is trying to scare her. And despite the fact
that she's scared, she is still willing to testify and take the stand.” (Italics
added.) The prosecutor also refuted Lockhart's counsel's claim that Savage
may have been angry just because he was arrested, noting that he told
Ojala before he was arrested that he was afraid of Michael Lockhart.
People v. Lockhart, 2006 WL 1280643 at **16-19.
The California Court of Appeal found no error in the trial court’s failure to
instructions based on the following rationale:
Lockhart contends the court should have sua sponte given an
instruction limiting the jury's use of witness intimidation evidence to their
assessment of the credibility of Savage and Boatley. Such an instruction
may be required where, as here, the evidence of witness intimidation is
offered only to show its effect on the witness's credibility. (See People v.
Warren (1988) 45 Cal.3d 471, 481, 247 Cal.Rptr. 172, 754 P.2d 218
[evidence of witness's fear in testifying is admissible as relevant to his
credibility].)
As to Ojala's testimony about Savage's fear of Michael, the court
did give a limiting admonition. The court advised the jury that his
testimony regarding Savage's fear was admitted solely for the purpose of
assessing Savage's believability and credibility as a witness. In addition,
the jury was instructed in accordance with CALJIC No. 2.09, advising
that evidence admitted for a limited purpose could not be considered for
any other purpose. The jury is presumed to understand and follow the
court's instructions. (People v. Ballard (1988) 203 Cal.App.3d 311, 320,
249 Cal.Rptr. 806.)
27
As to the intimidation of Boatley, the court did not expressly give a
separate limiting instruction. However, Lockhart neither requested a
further instruction nor reminded the court that it had indicated a further
instruction would be given. In any event, any error in this regard was
28
15
26
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
harmless. Boatley admitted that she did not know of any threat from
Lockhart himself, and the prosecutor told the jury that the evidence could
be used solely for the purpose of assessing Boatley's credibility, not for
establishing the defendants' guilt.
Id. at **19-20.
The state court’s conclusion was neither contrary to nor an unreasonable
application of federal law. A federal due process violation occurs only if the state trial
court's failure to give an instruction so infected the trial that the defendant was deprived
of a fair trial. Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988). A habeas
petitioner whose claim involves a failure to give a particular instruction bears an
"'especially heavy burden.'" Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997)
(quoting Henderson v. Kibbe, 431 U.S. 145, 155 (1977)). The significance of the
omission of such an instruction may be evaluated by comparison with the instructions
that were given and by an examination of the record. Murtishaw v. Woodford, 255 F.3d
926, 971 (9th Cir. 2001) (quoting Henderson, 431 U.S. at 156).
Petitioner’s claim fails. First, the trial court did in fact give the limiting
instruction when Ojala testified about Savage’s fear of testifying. The trial court also
gave an instruction that it could not consider evidence for any other purpose when a
limiting instruction is given. The Court of Appeal correctly stated that the jury is
presumed to follow such instructions. See Weeks v. Angelone, 528 U.S. 225, 234
(2000). Secondly, the threat evidence was never used by the prosecution to show
21
Petitioner’s guilt. The prosecutor repeatedly and expressly argued to the jury that such
22
evidence could only be considered to show that Boatley and Savage were credible.
23
Lastly, the threat evidence was very weak on the issue of Petitioner’s guilt. No
24
evidence linked any threats to Petitioner himself: Savage only feared Petitioner’s
25
family, and Boatley stated that she did not know of any threat from Petitioner.
26
Petitioner’s family could just as plausibly want to stop witnesses from testifying against
27
Petitioner whether or not Petitioner was actually guilty. Under these circumstances, the
28
16
1
absence of further limiting instructions about the threat evidence did not so infect the
2
trial as to violate due process.
3
For the same reasons, there is no reasonable probability of a different verdict if
4
counsel had requested further limiting instructions. Therefore, his Sixth Amendment
5
right to the effective assistance of counsel was not violated in this regard. See
6
Strickland v. Washington, 466 U.S. 668, 694 (1984).
7
Accordingly, the state court’s rejection of these claims was neither contrary to
8
nor an unreasonable application of federal law, and it did not involve an unreasonable
9
determination of the facts. Petitioner is not entitled to habeas relief.
10
3.
Sufficiency of Evidence
11
In his fourth, fifth and sixth claims, Petitioner contends that there was
12
insufficient evidence to support the jury’s verdicts and findings. These claims were
13
raised in state habeas petitions, where they were summarily denied. Petitioner cannot
14
demonstrate that the state court’s denial of these claims was contrary to, or an
15
unreasonable application of, clearly established state law, or that it was based on an
16
unreasonable determination of the facts.
17
Demonstrating entitlement to habeas relief based on a claim of insufficient
18
evidence requires a substantial showing. Because the Due Process Clause "protects the
19
accused against conviction except upon proof beyond a reasonable doubt of every fact
20
necessary to constitute the crime with which he is charged", In re Winship, 397 U.S.
21
358, 364 (1970), a state prisoner who alleges that the evidence in support of his state
22
conviction cannot be fairly characterized as sufficient to have led a rational trier of fact
23
to find guilt beyond a reasonable doubt states a constitutional claim. See Jackson v.
24
Virginia, 443 U.S. 307, 321-324 (1979).
25
26
The Supreme Court has emphasized, however, that “Jackson claims face a high
bar in federal habeas proceedings . . .” Coleman v. Johnson, 132 S. Ct. 2060, 2062
27
28
17
1
(2012) (per curiam). A federal court reviewing collaterally a state court conviction does
2
not determine whether it is satisfied that the evidence established guilt beyond a
3
reasonable doubt. Payne v. Borg, 982 F.2d 335, 338 (9th Cir. 1992); see also Coleman,
4
132 S. Ct. at 2065. Rather, the federal court "determines only whether, 'after viewing
5
the evidence in the light most favorable to the prosecution, any rational trier of fact
6
could have found the essential elements of the crime beyond a reasonable doubt.'"
7
Payne, 982 F.2d at 338 (quoting Jackson, 443 U.S. at 319). A due process violation
8
may be found only if no rational trier of fact could have found proof of guilt beyond a
9
reasonable doubt. Jackson, 443 U.S. at 324. Furthermore, a federal habeas court “must
10
presume – even if it does not affirmatively appear in the record – that the trier of fact
11
resolved any [] conflicts in favor of the prosecution, and must defer to that resolution.”
12
Id. at 326. The court may not substitute its judgment for that of the jury, see Coleman,
13
132 S. Ct. at 2065, and under Jackson's standard of review, a jury’s credibility
14
determinations are entitled to near-total deference. Bruce v. Terhune, 376 F.3d 950, 957
15
(9th Cir. 2004).
16
In his fourth claim, Petitioner argues that there was insufficient evidence that he
17
killed Brown, that he was armed, that he intended to kill Brown, or that he was
18
recklessly indifferent to human life. The prosecution’s chief theory of guilt was felony-
19
murder, and premeditated murder was presented as an alternate theory. Under either
20
theory, California law did not require a showing that Petitioner was the shooter because
21
it was sufficient to show that Petitioner aided and abetted Harris if he was not the
22
shooter. See Cal. Pen. Code § 31. Similarly, California law did not require a showing
23
that Petitioner was armed, only that either he or Harris was armed. See Cal. Pen. Code
24
§ 12022(a)(1). Intent to kill was also not necessary to prove felony-murder, and in any
25
even there was sufficient evidence of such intent: Coleman testified that Petitioner
26
planned to rob Brown with a gun, her testimony showed a plausible motive for him to
27
28
18
1
kill Brown (i.e. Brown’s sexual relationship with her), and Brown was shot multiple
2
times even though he was not armed. Such evidence was also more than sufficient for a
3
reasonable juror to find Petitioner’s “reckless indifference” to Brown’s safety, in
4
addition to all of the evidence that he robbed Brown at gunpoint.
5
In his fifth claim, Petitioner argues that there was insufficient evidence of felony-
6
murder because the robbery and murder were independent of each other. Under
7
California law, Petitioner is guilty of felony-murder as long as there is a “logical nexus”
8
between the felony and the killing; the purpose of this rule is to exclude killings that are
9
“completely unrelated to” the felony. People v. Cavitt, 33 Cal. 4th 187, 198-99, 201-03
10
(2004). A rational fact-finder could find that Petitioner committed felony-murder
11
based on Coleman’s testimony that Petitioner planned to rob Brown at gunpoint, and the
12
evidence that Brown was killed at the same time he was robbed. The prosecution’s
13
evidence all pointed to a killing that occurred during the commission of a planned
14
robbery. There was no evidence that the killing occurred independently, let alone that it
15
was “completely unrelated to” the robbery.3
16
In his sixth claim, Petitioner argues that there was insufficient evidence to
17
support the jury’s finding the special circumstance of robbery-murder. This finding
18
requires proof that the murder was committed “in order to carry out or advance the
19
commission of the robbery or to facilitate the escape therefrom or avoid detection.” See
20
Cal. Pen. Code § 190.2(a)(17). Just as there was sufficient evidence of felony-murder,
21
there was sufficient evidence to support the same finding for purposes of the robbery-
22
murder special circumstance.
23
24
Accordingly, Petitioner is not entitled to relief on these claims.
4.
Ineffective Assistance of Counsel
25
26
27
28
3
Petitioner’s additional argument in claim five — that there was insufficient
evidence to prove the killing was done with malice — is without merit for the reasons
discussed above in connection with the evidence of premeditation.
19
1
Petitioner claims that his attorney was ineffective because he failed to make the
2
foregoing arguments about the insufficiency of the evidence. The Court has already
3
explained why those arguments are without merit. It was neither unreasonable nor
4
prejudicial for counsel to fail to meritless arguments. It was a reasonable strategic
5
decision for counsel instead to challenge Coleman’s testimony as based on a promise of
6
leniency and Savage’s identification as unreliable, and argue that Petitioner was not one
7
of the perpetrators. See generally Strickland, 466 U.S. at 694. Accordingly, Petitioner
8
is not entitled to relief on this claim.
9
5.
10
Savage’s Identification of Petitioner
Petitioner claims that Savage’s identification of Petitioner at the preliminary
11
hearing and at trial were unduly tainted by impermissibly suggestive pretrial
12
identification procedures. Petitioner also argues that counsel was ineffective in failing
13
to object to the admission of the evidence.
14
On the night of the homicide, Savage described the two men he saw, but did not
15
identify Petitioner. One week later, Savage identified Harris in a six-man lineup that
16
did not include Petitioner. Two days later, Savage viewed a six-man lineup that
17
included Petitioner; he did not identify Petitioner, and he put question marks over two
18
other men. About three weeks later, however, he called Sergeant Medeiros after
19
learning about Petitioner’s arrest and told Medeiros that he had known Petitioner for
20
about fifteen years and had recognized him in the lineup. He explained that he had not
21
immediately identified Petitioner on the night of the shooting, but that he recognized
22
him in the lineup and realized that he was the second man with Harris. He asked
23
Medeiros if Petitioner had been in the number one position in the lineup; the answer
24
was no, as Petitioner had been in the third position. Savage later identified Petitioner at
25
the preliminary hearing and at trial.
26
Identification testimony is inadmissible as a violation of due process only if (1) a
27
28
20
1
pretrial encounter is so impermissibly suggestive as to give rise to a very substantial
2
likelihood of irreparable misidentification, and (2) the identification is not sufficiently
3
reliable to outweigh the corrupting effects of the suggestive procedure. Van Pilon v.
4
Reed, 799 F.2d 1332, 1338 (9th Cir. 1986).
5
There is no evidence that any aspect of the six-person lineup suggested or singled
6
out Petitioner. Petitioner argues that his mere presence in the lineup suggested that the
7
police believed he was guilty. There were six men in the lineup; his presence did not
8
suggest that the police believed in his guilt any more than they believed in the guilt of
9
the five others.
10
There is also no evidence of any suggestive conduct by the police prompting
11
Savage’s subsequent phone call to Medeiros, or any such suggestive conduct by the
12
police between the time of the lineup and the preliminary hearing where Petitioner
13
identified him. Petitioner asserts that when Savage identified Petitioner at the
14
preliminary hearing, Petitioner was sitting alone at the defense table and wearing
15
jailhouse clothing. A criminal defendant sitting alone at defense table at a pretrial
16
hearing is not impermissibly suggestive. See Johnson v. Sublett, 63 F.3d 926, 929 (9th
17
Cir. 1995) (identification procedures not unnecessarily suggestive where witness failed
18
to identify defendant from photo spread but later made positive identification at pretrial
19
suppression hearing). Petitioner also argues that Savage saw him in court with Harris
20
before Savage testified at the preliminary hearing. Petitioner’s being with Harris in
21
court at the preliminary hearing does no more to suggest that the police suspect him
22
than does his sitting at the defense table.
23
Moreover, the admission of Savage’s identification of Petitioner, even if it were
24
erroneous, did not have a substantial and injurious effect on the jury’s verdict so as to
25
cause prejudice under Brecht. See 507 U.S. at 637. Savage’s identification of
26
Petitioner was, moreover, cumulative of the stronger and more extensive evidence from
27
28
21
1
Coleman not only identifying Petitioner as one of the perpetrators, but also describing
2
his planning and execution of the crimes.
3
Counsel was not ineffective in failing to object to the admission of Savage’s
4
identification of Petitioner because, as discussed above, such an objection would have
5
been meritless and because there is no reasonable likelihood that admission of the
6
largely cumulative identification evidence affected the outcome of the trial. See
7
Strickland, 466 U.S. at 687-94.
8
9
10
For these reasons, the state court’s rejection of this claim was neither contrary to
nor an unreasonable application of federal law.
6.
Counsel’s Cross-Examination of Savage
11
In his ninth claim, Petitioner argues that counsel’s cross-examination of Savage
12
was deficient because he did not adequately cross-examine him about his identification
13
of Petitioner. Ineffective assistance of counsel requires a showing that counsel’s
14
conduct was objectively unreasonable and prejudicial, meaning there was a reasonable
15
probability that it effected the outcome of the trial. Strickland, 466 U.S. at 687-94.
16
The record shows that counsel conducted an extensive cross-examination of both
17
Savage and Medeiros about the topics that Petitioner cites regarding Savage’s
18
identification of Petitioner. Counsel raised Savage’s failure to recognize Petitioner at
19
the time of the incident or at the live lineup, Savage’s subsequent phone call to
20
Medeiros after Savage learned that Petitioner had been arrested, Savage’s mis-
21
identification of Petitioner’s placement in the lineup, his failure to tell Medeiros earlier
22
that he had known Petitioner for a long time, and his failure to identify Petitioner until
23
the preliminary hearing. Counsel also cross-examined Medeiros about Savage’s phone
24
call to Medeiros and his delay in identifying Petitioner. This amounted to an extensive
25
and thorough cross-examination that effectively called into question the value of
26
Savage’s identification of Petitioner at the preliminary hearing and at trial. The
27
28
22
1
problem for Petitioner was, of course, that Coleman had already identified Petitioner
2
and described his role in the crime in greater detail.
3
Petitioner complains that counsel failed to elicit the fact that Savage had learned
4
from the news that Petitioner had been arrested when he made the follow-up call to
5
Medeiros, but counsel did cross-examine Savage about calling Medeiros after learning
6
that Petitioner had been arrested. Petitioner also complains that counsel failed to elicit
7
the fact that Petitioner was in prison clothing when Savage identified him at the
8
preliminary hearing, and that Savage had seen Petitioner with Harris in court. The
9
omission of this topic is insignificant in light of counsel’s otherwise thorough cross-
10
examination of Savage and Medeiros, and the problems that counsel exposed in
11
Savage’s identification of Petitioner via that cross-examination.
12
Furthermore, any shortcomings in counsel’s cross-examination about Savage’s
13
identification of Petitioner was not prejudicial because, as discussed above, Savage’s
14
testimony largely cumulative of other, stronger evidence identifying Petitioner as one of
15
the perpetrators.
16
The state court’s rejection of this claim was neither contrary to nor an
17
unreasonable application of federal law, nor did it involve an unreasonable
18
determination of the facts. Petitioner is not entitled to habeas relief on this claim.
19
7.
Jury Bias and Transcripts
20
In his tenth claim, Petitioner contends that the prosecutor violated his
21
constitutional rights by using peremptory challenges to exclude black and minority
22
jurors. The problem with this claim is that it consists of one conclusory paragraph with
23
no explanation as to which prospective jurors or how many were improperly challenged,
24
whether any black and minority jurors remained on the panel, or whether the prosecutor
25
had any non-discriminatory reasons for the challenges. The transcript of the voir dire,
26
lodged herein, does not reveal any prima facie case of discriminatory use of peremptory
27
28
23
1
challenges.
2
In his eleventh claim, Petitioner asserts that the state courts and appellate counsel
3
improperly failed to provide him with voir dire transcripts and jury questionnaires when
4
he requested them for his state habeas petitions. To begin with, there is no clearly
5
established federal law, within the meaning of 28 U.S.C. § 2254(d)(1), that he has a
6
constitutional right to transcripts for purposes of collateral review.4 Indeed, errors in the
7
state post-conviction review process are not addressable through federal habeas corpus
8
proceedings. See Ortiz v. Stewart, 149 F.3d 923, 939 (9th Cir. 1998). Moreover, like
9
his tenth claim, this claim consists of one brief and conclusory paragraph with no
10
explanation or argument as to what improper peremptory challenges he could show if he
11
had the transcripts and records. If Petitioner knows of any that peremptory challenges
12
that were made improperly, he could have described them even without the transcripts
13
and records, and he has not done so. If he cannot allege what improper challenges were
14
made, then he is simply speculating that some might be revealed by the record; such
15
speculation is not sufficient to state a cognizable grounds for habeas relief. In any
16
event, the voir dire transcripts are part of the record that has been lodged with the Court
17
in this case, and it reveals no prima facie case of improper peremptory challenges. The
18
jury questionnaires were given to defense counsel, and Petitioner has not explained why
19
he did not or could not obtain them from him.
20
Petitioner has not shown that the state court’s denial of his tenth and eleventh
21
claims were contrary to or an unreasonable application of federal law or involved an
22
unreasonable determination of the facts. He is not entitled to relief on these claims.
23
CONCLUSION
24
For the foregoing reasons, the petition for a writ of habeas corpus is DENIED.
25
26
27
28
4
While a state court may not deny transcripts for direct review to indigent
prisoners when they provide them to paying appellants, Petitioner here does not allege
that they were denied based on his indigence, and he was not pursuing direct review.
24
1
Petitioner has failed to make a substantial showing that his claims amounted to a denial
2
of his constitutional rights or demonstrate that a reasonable jurist would find this
3
Court’s denial of his claim debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484
4
(2000). Consequently, no certificate of appealability is warranted in this case.
5
The clerk shall enter judgment and close the file.
6
IT IS SO ORDERED.
7
8
9
DATED: March 26, 2013
JEFFREY S. WHITE
United States District Judge
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA
1
2
3
ERIC LOCKHART,
Plaintiff,
4
5
6
7
Case Number: CV08-02935 JSW
CERTIFICATE OF SERVICE
v.
TONY HEDGPETH et al,
Defendant.
/
8
9
10
11
I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on March 26, 2013, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing
said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.
12
13
14
15
Eric Lockhart V-17246
P.O. Box 3461
Corcoran, CA 93212
16
17
18
Dated: March 26, 2013
Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk
19
20
21
22
23
24
25
26
27
28
26
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?