Winters v. Lewis

Filing 15

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS (SI, COURT STAFF) (Filed on 11/1/2011) (Additional attachment(s) added on 11/1/2011: # 1 Envelope) (tf, COURT STAFF).

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA United States District Court For the Northern District of California 10 11 12 15 16 ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS Petitioner, 13 14 No. C 10-2826 SI (PR) JOHN HENRY WINTERS, v. GREG LEWIS, Warden, Respondent. / 17 18 INTRODUCTION 19 This is a federal habeas corpus action filed by a pro se state prisoner pursuant to 20 28 U.S.C. § 2254. For the reasons set forth below, the petition is DENIED. 21 22 BACKGROUND 23 In 2006, petitioner, who was tried with a co-defendant, was convicted in an Alameda 24 County Superior Court of assault by force likely to produce great bodily injury, burglary, 25 robbery, receiving stolen property and the unlawful taking of a vehicle. The crimes were alleged 26 to have been the result of gang activity, and were committed in 2004. The jury found true 27 various sentencing enhancement allegations, yet found not true all criminal street gang 28 1 allegations. Petitioner received a sentence of 21 years and 4 months in state prison. As grounds 2 for federal habeas relief, petitioner claims that (1) his right to due process was violated when 3 evidence of a prior conviction was admitted at his trial; (2) the prosecutor committed misconduct 4 during closing argument by improperly commenting on petitioner’s refusal to testify; and (3) his 5 rights to due process and a jury trial were violated when the trial court failed to instruct the jury 6 that it had to unanimously agree on which act constituted the burglary. 7 8 STANDARD OF REVIEW This Court may entertain a petition for writ of habeas corpus “in behalf of a person in 10 United States District Court For the Northern District of California 9 custody pursuant to the judgment of a State court only on the ground that he is in custody in 11 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The 12 petition may not be granted with respect to any claim that was adjudicated on the merits in state 13 court unless the state court’s adjudication of the claim: “(1) resulted in a decision that was 14 contrary to, or involved an unreasonable application of, clearly established Federal law, as 15 determined by the Supreme Court of the United States; or (2) resulted in a decision that was 16 based on an unreasonable determination of the facts in light of the evidence presented in the 17 State court proceeding.” 28 U.S.C. § 2254(d). 18 “Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state court 19 arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or 20 if the state court decides a case differently than [the] Court has on a set of materially 21 indistinguishable facts.” Williams (Terry) v. Taylor, 529 U.S. 362, 412–13 (2000). “Under the 22 ‘unreasonable application’ clause, a federal habeas court may grant the writ if the state court 23 identifies the correct governing legal principle from [the] Court’s decisions but unreasonably 24 applies that principle to the facts of the prisoner’s case.” Id. at 413. “[A] federal habeas court 25 may not issue the writ simply because that court concludes in its independent judgment that the 26 relevant state-court decision applied clearly established federal law erroneously or incorrectly. 27 Rather, that application must also be unreasonable.” Id. at 411. A federal habeas court making 28 2 1 the “unreasonable application” inquiry should ask whether the state court’s application of clearly 2 established federal law was “objectively unreasonable.” Id. at 409. 3 DISCUSSION 4 5 I. Prior Conviction Evidence Petitioner claims that the admission of a prior conviction — a 1998 conviction for assault 7 with a deadly weapon, which an expert witness testified was gang-related — violated his right 8 to due process because it constituted impermissible propensity and character evidence. The trial 9 court admitted the evidence under California Evidence Code section 1101(b) (“Evidence of 10 United States District Court For the Northern District of California 6 character to prove conduct”) because the conviction was relevant to the truth of the sentencing 11 enhancement allegation that petitioner committed the charged assault for the benefit of a street 12 gang, see Cal. Penal Code § 186.22. The state appellate court rejected petitioner’s due process 13 claim because the evidence was relevant for the reasons stated by the trial court. (Ans., Ex. C4 14 at 5–6.) 15 The admission of evidence is not subject to federal habeas review unless a specific 16 constitutional guarantee is violated or the error is of such magnitude that the result is a denial 17 of the fundamentally fair trial guaranteed by due process. See Henry v. Kernan, 197 F.3d 1021, 18 1031 (9th Cir. 1999). In order to obtain habeas relief on the basis of an evidentiary error, a 19 petitioner must show that the error was one of constitutional dimension and that it was not 20 harmless under Brecht v. Abrahamson, 507 U.S. 619 (1993). He would have to show that the 21 error had “‘a substantial and injurious effect’ on the verdict.” Dillard v. Roe, 244 F.3d 758, 767 22 n.7 (9th Cir. 2001) (quoting Brecht, 507 U.S. at 623). Also, significantly, habeas relief may be 23 granted only if there are no permissible inferences that the jury may draw from the evidence. 24 See Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991). 25 Petitioner’s claim cannot succeed because no remediable constitutional violation 26 occurred. The United States Supreme Court has left open the question whether admission of 27 propensity evidence violates due process. Estelle v. McGuire, 502 U.S. 62, 75 n. 5 (1991). 28 3 1 Because the Supreme Court has reserved this issue as an “open question,” the Ninth Circuit has 2 held that a petitioner’s due process right concerning the admission of propensity evidence is not 3 clearly established for purposes of review under AEDPA. Alberni v. McDaniel, 458 F.3d 860, 4 866–67 (9th Cir. 2006). Even if the evidence were irrelevant or prejudicial, the Supreme Court 5 “has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence 6 constitutes a due process violation sufficient to warrant issuance of the writ.” Holley v. 7 Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009). Additionally, as the jury found the gang 8 allegation untrue, it is reasonable to conclude that the jury rejected the significance of the 1998 9 conviction evidence, and therefore there was no prejudice. United States District Court For the Northern District of California 10 Furthermore, admission of prior act evidence to show intent, motive, identity, or common 11 plan or scheme, has been found constitutionally permissible. See, e.g., McGuire, 502 U.S. at 12 70–72 (intent); Williams v. Stewart, 441 F.3d 1030, 1040 (9th Cir. 2006) (identity and intent); 13 Boyde v. Brown, 404 F.3d 1159, 1172–73 (9th Cir. 2005) (common plan or scheme); Windham 14 v. Merkle, 163 F.3d 1092, 1103–1104 (9th Cir. 1998) (motive). As it was permissible for the 15 jury to infer that petitioner committed the crime for the benefit of a gang, no habeas relief can 16 be granted. See Jammal, 926 F.2d at 920. Accordingly, petitioner’s claim is DENIED for want 17 of merit. 18 19 II. Alleged Prosecutorial Misconduct 20 Petitioner claims that the prosecutor committed misconduct by (1) calling attention to the 21 fact that petitioner did not testify at trial, thereby violating his Fifth Amendment rights as those 22 rights are defined in Griffin v. California, 380 U.S. 609 (1965); and (2) making improper 23 comments during rebuttal. 24 1. 25 Griffin error occurs, and a defendant’s privilege against self-incrimination is violated, 26 where a prosecutor on his own initiative asks the jury to draw an adverse inference from a 27 defendant’s silence, or to treat the defendant’s silence as substantive evidence of guilt. Griffin, Alleged Griffin Error 28 4 1 380 U.S. at 615. While it is proper for the prosecution to address the defense arguments, a 2 comment is impermissible if it is manifestly intended to call attention to the defendant’s failure 3 to testify, or is of such a character that the jury would naturally and necessarily take it to be a 4 comment on the failure to testify. See Lincoln v. Sunn, 807 F.2d 805, 809 (9th Cir. 1987) (citing 5 United States v. Bagley, 772 F.2d 482, 494 (9th Cir. 1985). 6 Petitioner bases his Griffin claim on the following. At trial, petitioner presented evidence 7 of an alibi through the testimony of his grandmother. She testified that petitioner had lived with 8 her after he had been paroled, that she went to bed at 8:00 pm, and that he lived with her in the 9 summer of 2004. (Ans., Ex. C4 at 4.) The prosecutor, in his closing argument, United States District Court For the Northern District of California 10 11 12 13 after referring to [petitioner]’s grandmother’s testimony, that although other adults lived in [petitioner]’s home, and perhaps were awake after 8:00 p.m. on the night in question, no one else was called to say what [petitioner] had been doing later that evening. After defense objections were overruled, the prosecutor stated that certain people could have been called, ‘such as other family members, brothers, sisters, mothers,’ and stated, ‘that leaves something for you to wonder as well.’ 14 (Id. at 7.) The state appellate court rejected petitioner’s Griffin claim because the prosecutor’s 15 comments “were about the defense failure to call logical third-party witnesses who might shed 16 light on [petitioner]’s whereabouts if he had not stabbed [one of the victims]. They did not refer, 17 expressly or impliedly, to [petitioner’s] failure to testify and, therefore, were permissible.” (Id.) 18 Petitioner’s claim lacks merit. The state appellate court reasonably determined that no 19 Griffin error or prosecutorial misconduct occurred. First, petitioner presented evidence of an 20 alibi, thereby inviting the prosecutor to respond. The comments were a challenge to the strength 21 of petitioner’s alibi, and therefore were a permissible comment on the evidence. Having invited 22 the response, petitioner cannot now plausibly argue that the prosecutor’s comments were 23 manifestly intended to call attention to his right to remain silent. Second, the prosecutor limited 24 the possible alibi witnesses to family members, and made no mention of petitioner as one of 25 those witnesses. In sum, nothing in the comments raises an inference, let alone shows, that the 26 prosecutor was commenting on petitioner’s failure to testify. Accordingly, petitioner’s claim is 27 DENIED for want of merit. 28 5 1 2. 2 The facts underlying this prosecutorial misconduct claim, as identified by the state 3 4 5 appellate court, are as follows: The defense had argued that the prosecution and police did not do a lot of things that could have dispelled reasonable doubt, which led to the following exchanges during rebuttal: ‘PROSECUTOR: Ms. Kingston was talking about the various things that may not have been done. No DNA, no fingerprints found, why weren’t the items fingerprinted, how about live lineups, police procedures, various things to basically throw you off. In any investigation, more can always be done. Our system is an adversarial system. That means that the People have a lawyer, each of these gentlemen has a lawyer. If they wanted a live lineup in 2004 — 6 7 8 9 10 United States District Court For the Northern District of California Other Allegedly Improper Comments ‘[Defense counsel] MS. KINGSTON: Objection, Your Honor. Doyle.1 11 ‘THE COURT: The jury should disregard the comment. Go on, counsel. 12 13 14 ‘PROSECUTOR: If they wanted the items fingerprinted, they could have fingerprinted them. 15 ‘MS. KINGSTON: Objection, Your Honor. Doyle error. 16 ‘THE COURT: Come to the bench, please. 17 (Whereupon, the discussion was held off the record.) 18 ‘PROSECUTOR: It’s a two-way street, things can be done. 19 ‘MS. KINGSTON: Objection, Your Honor. Doyle error. 20 ‘THE COURT: J[u]rors should disregard the statement.” 21 22 23 24 25 Defense counsel then requested that the court cite the prosecutor for misconduct and instruct the jury regarding that misconduct. She moved for a mistrial, and in the alternative, asked for a five-minute rebuttal, in particular because it was ‘not a two-way street. I don’t have those burdens.’ The court found that the prosecutor’s ‘two-way street’ remark had to do with both sides having legal representation, not any defense burden of proof and, regardless, that since the jury had been told to disregard the remarks and would again be instructed on the People’s burden of proof, there was no danger of any juror believing the defense had any burden of proof. 26 27 28 1 Doyle v. Ohio, 426 U.S. 610 (1976), prohibits the use of a defendant’s post-arrest, post-Miranda silence to impeach the defense case. 6 The next day, the court instructed the jury that ‘it is the burden of the People to prove [petitioner] guilty beyond a reasonable doubt as to each element of each crime and offense that’s been charged and that burden never shifts to the defense. And so notwithstanding some comments that . . . you may recall have been made during closing arguments . . . the burden does not shift to the defendant to prove anything in this case.’ 1 2 3 4 (Ans., Ex. C4 at 7–8.) (footnote removed). 5 The state appellate court rejected petitioner’s claim that the prosecutor’s statements 6 7 8 violated his right to due process. The trial court’s “quick directives and thorough instruction cured any problem that might have been caused by the prosecutor’s brief comments.” (Id. at 8.) The state appellate court reasonably determined that no constitutional violation occurred. 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 The prosecutor’s comments were brief and were swiftly corrected by the trial court. Also, the trial court later gave further instructions (1) on the prosecution’s burden of proof, (2) that the jury was to follow the instructions as the trial court gave them, and (3) to disregard the lawyers’ instructions if they conflicted with those given by the court. (Id., Ex. A3 at 1 & 6.) Jurors are presumed to follow their instructions. See Richardson v. Marsh, 481 U.S. 200, 206 (1987). Petitioner has not overcome this presumption, and there is nothing in the record to indicate that the jurors did not adhere to the trial court’s instructions. Accordingly, petitioner’s claim is DENIED for want of merit. 18 19 20 21 22 23 24 25 26 27 28 III. Unanimity Instruction Petitioner claims that his right to due process was violated when the trial court refused to instruct the jury that it had to unanimously agree on which act constituted the assault. Petitioner is not entitled to habeas relief on this claim. Due process does not require that the jury agree as to the specific acts that constituted commission of the crimes charged. The Supreme Court has held that “different jurors may be persuaded by different pieces of evidence, even when they agree upon the bottom line. Plainly there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict.” McKoy v. North Carolina, 494 U.S. 433, 449 (1990) (Blackman, J, concurring); see also Schad v. Arizona, 501 U.S. 624, 631–32 (1991) (rule that jurors not required to agree upon single means of commission 7 1 of crime, citing McKoy, applies equally to contention they must agree on one of the alternative 2 means of satisfying mental state element of crime). Accordingly, the claim is DENIED for want 3 of merit. 4 CONCLUSION 5 6 The state court’s denial of petitioner’s claims did not result in a decision that was contrary 7 to, or involved an unreasonable application of, clearly established federal law, nor did it result 8 in a decision that was based on an unreasonable determination of the facts in light of the 9 evidence presented in the state court proceeding. Accordingly, the petition is DENIED. United States District Court For the Northern District of California 10 A certificate of appealability will not issue. Reasonable jurists would not “find the 11 district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 12 529 U.S. 473, 484 (2000). Petitioner may seek a certificate of appealability from the Court of 13 Appeals. 14 The Clerk shall enter judgment in favor of respondent, and close the file. 15 IT IS SO ORDERED. 16 17 DATED: November 1, 2011 SUSAN ILLSTON United States District Judge 18 19 20 21 22 23 24 25 26 27 28 8

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