Alder v. Cullen

Filing 20

ORDER denying re 1 Petition for Writ of Habeas Corpus. Signed by Judge Charles R. Breyer on 1/30/2012. (Attachments: # 1 Certificate of Service)(beS, COURT STAFF) (Filed on 1/31/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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BENNIE LEE ALDER, G-53356,
Petitioner,

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vs.
KELLY HARRINGTON, Warden,
Respondent.
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No. C 10-2920 CRB (PR)
ORDER DENYING
PETITION FOR A WRIT OF
HABEAS CORPUS AND
DENYING CERTIFICATE OF
APPEALABILITY

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Petitioner seeks a writ of habeas corpus under 28 U.S.C. § 2254. In its

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initial review order the court found that the petition, liberally construed, stated a

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cognizable claim under section 2254 and ordered respondent to show cause why

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a writ of habeas corpus should not be granted. Respondent has filed an answer to

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the order to show cause; petitioner has not filed a traverse. Having reviewed the

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papers and the underlying record, the court concludes that petitioner is not

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entitled to habeas corpus relief.

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STATEMENT OF THE CASE
Petitioner was convicted by a jury in Alameda County Superior Court of

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kidnaping and committing multiple sex offenses against two different victims.

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Because he had an extensive criminal record, including three prior strike

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convictions, the court sentenced him to 180 years to life in state prison. The

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California Court of Appeal affirmed the conviction and sentence, and the

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Supreme Court of California denied review. The issues that petitioner raises here

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are those he presented on direct appeal.
STATEMENT OF THE FACTS

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Petitioner’s issues are all attacks on jury instructions. To the extent the

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facts of the case are relevant to the outcome, they are set out in the discussion of

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each claim, below.
DISCUSSION

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A.

Standard of Review
This court may entertain a petition for a writ of habeas corpus “in behalf

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of a person in custody pursuant to the judgment of a State court only on the

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ground that he is in custody in violation of the Constitution or laws or treaties of

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the United States.” 28 U.S.C. § 2254(a).
The writ may not be granted with respect to any claim that was

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adjudicated on the merits in state court unless the state court’s adjudication of the

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claim: “(1) resulted in a decision that was contrary to, or involved an

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unreasonable application of, clearly established Federal law, as determined by the

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Supreme Court of the United States; or (2) resulted in a decision that was based

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on an unreasonable determination of the facts in light of the evidence presented

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in the State court proceeding.” Id. § 2254(d).

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“Under the ‘contrary to’ clause, a federal habeas court may grant the writ

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if the state court arrives at a conclusion opposite to that reached by [the Supreme]

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Court on a question of law or if the state court decides a case differently than [the

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Supreme] Court has on a set of materially indistinguishable facts.” Williams v.

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Taylor, 529 U.S. 362, 412-13 (2000). “Under the ‘reasonable application’ clause,

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a federal habeas court may grant the writ if the state court identifies the correct

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governing legal principle from [the Supreme] Court’s decisions but unreasonably

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applies that principle to the facts of the prisoner’s case.” Id. at 413.

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“[A] federal habeas court may not issue the writ simply because that court

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concludes in its independent judgment that the relevant state-court decision

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applied clearly established federal law erroneously or incorrectly. Rather, that

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application must also be unreasonable.” Id. at 411. “[A] federal habeas court

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making the ‘unreasonable application’ inquiry should ask whether the state

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court’s application of clearly established federal law was objectively

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unreasonable.” Id. at 409.

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The only definitive source of clearly established federal law under 28

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U.S.C. § 2254(d) is in the holdings (as opposed to the dicta) of the Supreme

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Court as of the time of the state court decision. Id. at 412; Clark v. Murphy, 331

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F.3d 1062, 1069 (9th Cir. 2003). While circuit law may be “persuasive

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authority” for purposes of determining whether a state court decision is an

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unreasonable application of Supreme Court precedent, only the Supreme Court’s

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holdings are binding on the state courts, and only those holdings need be

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“reasonably” applied. Id.

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B.

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Claims & Analysis
Petitioner claims that the trial court violated his constitutional rights by

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instructing the jury with CALJIC 2.21.2, CALJIC 2.03, and CALJIC 10.60. His

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claims are those he raised on direct appeal. Petitioner conceded on appeal that

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his arguments had all been rejected in other cases by the California Supreme

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Court, and said that he was rasing them only to “preserve them for possible

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federal review.” People v. Alder, 2010 WL 673201 at *1 (Cal. Ct. App. 2010).

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To obtain federal collateral relief for errors in the jury charge, a petitioner

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must show that the ailing instruction by itself so infected the entire trial that the

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resulting conviction violates due process. Estelle v. McGuire, 502 U.S. 62, 72

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(1991). The instruction may not be judged in artificial isolation, but must be

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considered in the context of the instructions as a whole and the trial record. Id.

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The defined category of infractions that violate fundamental fairness is very
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narrow: "Beyond the specific guarantees enumerated in the Bill of Rights, the

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Due Process Clause has limited operation." Id. at 73.

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1.

CALJIC 2.21.2

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The trial court gave the jury California uniform jury instruction 2.21.2,

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which provided: “A witness, who is willfully false in one material part of his or

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her testimony, is to be distrusted in others. You may reject the whole testimony

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of a witness who willfully has testified falsely as to a material point, unless, from

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all the evidence, you believe the probability of truth favors his or her testimony in

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other particulars.” Ex. A, Vol. 2 at 345.

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Petitioner argued on direct appeal – and argues here – that because he was

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a witness, the instruction allowed the jury to disbelieve his entire testimony if it

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believed any one part of it was false, thus lessening the prosecution’s burden of

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proof. The court of appeal rejected the argument, saying only that “[a]rguments

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like the one defendant makes with respect to this instruction were rejected in

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People v. Beardslee (1991) 53 Cal.3d 68, 95, and People v. Lang (1989) 49

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Cal.3d 991, 1023.” Alder, 2010 WL 673201 at *2. In Beardslee, the California

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Supreme Court rejected an argument that CALJIC 2.21.2 unconstitutionally

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lessened the prosecution’s burden of proof, holding that the instruction does not

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require the jury to disbelieve all of a witness’s testimony if it finds part of it to be

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untrue, that the portion of the instruction telling the jury that it should not reject

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the whole of a witness’s testimony if it finds that part of it is probably true is

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“merely a statement of the obvious,” and that all the instruction does is give the

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jury one test of a witness’s credibility, without singling out any particular

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witness. Beardslee, 53 Cal. 3d at 94-95. In Lang the court rejected the same

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argument on the authority of a series of court of appeal cases that held that the

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instruction was a correct statement of the law. Lang, 49 Cal. 3d 1023.

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The Ninth Circuit has rejected the argument petitioner advances here. In

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Turner v. Calderon, 281 F.3d 851 (9th cir. 2002), in the context of deciding if a
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certificate of appealability should be granted on the issue, the court held that

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“[n]o reasonable jurist could conclude that, viewed in context, this ‘instruction by

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itself so infected the entire trial that the resulting conviction violates due

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process.” Id. at 865-66 (quoting Estelle, 502 U.S. at 72). The court held that the

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instruction did not single out the defendant, and that because the text of the

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instruction left the jurors fee to exercise their judgment as to what they accepted

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and rejected, “the instruction could not be applied in a way that challenged the

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Constitution.” Id. at 866. This claim is without merit.1

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2.

CALJIC 2.03

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The trial court gave the jury California uniform jury instruction 2.03,

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which provided: “If you find that before this trial [the] defendant made a willfully

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false or deliberately misleading statement concerning the crimes[s] for which [he]

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is now being tried, you may consider that statement as a circumstance tending to

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prove a consciousness of guilt. However, that conduct is not sufficient by itself to

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prove guilt, and its weight and significance, if any, are for you to decide.” Ex. A,

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Vol. 2 at 338.

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Petitioner contends that the instruction lessened the prosecution’s burden

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of proof. The court of appeal rejected this argument, saying that the instruction

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was upheld in People v. Kelly, 1 Cal.4th 495, 531 (1992), and People v.

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The trial court also gave CALJIC 2.21.1, which read: “Discrepancies in
a witness’s testimony or between a witness’s testimony and that of other
witnesses, if there were any, do not necessarily mean that [a] witness should be
discredited. Failure of recollection is common. Innocent misrecollection is not
uncommon. Two persons witnessing an incident or a transaction often will see or
hear it differently. You should consider whether a discrepancy relates to an
important mater or only to something trivial.” Ex. A, Vol. 2 at 344. A jury
instruction challenged as unconstitutional should not be judged in artificial
isolation, but must be considered in the context of the instructions as a whole and
the trial record. Estelle, 502 U.S. at 72. That CALJIC 2.21.1 was given adds
support to the conclusion that the instruction could not have been applied
unconstitutionally.
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Bacigalupo, 1 Cal.4th 103, 128 (1991), precedents which the court was required

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to follow. Alder, 2010 WL 673201 at *2.

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The appellant in Turner v. Marshall, 63 F.3d 807 (9th Cir. 1995),

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overruled on other grounds, Tolbert v. Page, 182 F.3d 677, 685 (9th Cir. 1999)

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(en banc), made the same argument as to CALJIC 2.03 as petitioner does here.2

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The Ninth Circuit rejected the challenge, saying that because 2.03 does not “state

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that inconsistent statements constitute evidence of guilt, but merely states that the

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jury may consider them as indicating a consciousness of guilt . . . we find no

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constitutional error.” Id. at 820. Turner is controlling here. Petitioner’s claim is

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without merit.

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3.

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The trial court gave the jury California uniform jury instruction 10.60,

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which provided: “It is not essential to a finding of guilty on a charge of [rape]

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that the testimony of the witness with whom sexual relations is alleged to have

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been committed be corroborated by other evidence.” Ex. A, Vol. 2 at 367. The

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court also gave CALJIC 2.27, which as given provided: “You should give the

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testimony of a single witness whatever weight you think it deserves. Testimony

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concerning any fact by one witness, which you believe, is sufficient for the proof

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of that fact. You should carefully review all the evidence upon which the proof of

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that fact depends.” Id. at 349.

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CALJIC 10.60

Petitioner contends that the instructions duplicate each other, and therefore

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when given together give undue weight to the testimony of the complaining

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witness. The court of appeal rejected this argument, saying that the instruction

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was upheld by the California Supreme Court in People v. Gammage, 2 Cal.4th

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693, 700-701 (1992), a precedent it was required to follow. Alder, 2010 WL

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673201 at *2.

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The instruction at issue in Turner was the same as that given here.
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The Ninth Circuit considered and rejected petitioner’s argument in Bruce

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v. Terhune, 376 F.3d 950 (9th Cir. 2004). The court held that when the jury was

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properly instructed on the burden of proof, the presumption of innocence, and the

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factors for evaluating witness testimony, the instructions considered as a whole

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did not violate the requirement that guilt be proved beyond a reasonable doubt set

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out in In re Winship, 397 U.S. 358, 364 (1970).

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The trial court gave instructions that are not challenged here on the burden

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of proof, presumption of innocence, and factors for evaluating witness testimony.

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Ex. A, Vol. 2 at 336, 338, 341, 342-43, 344, 345, 346, 347, 348, 349, 353, 354,

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355, 356, 360-68. Bruce therefore is controlling. Petitioner’s claim is without

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merit.

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4.

Cumulative Effect

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Petitioner contends that the errors discussed above were cumulatively

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prejudicial. When there is no constitutional error, there is nothing to accumulate.

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Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir. 2002). There was no prejudice.

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CONCLUSION

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For the foregoing reasons, the petition for a writ of habeas corpus is

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DENIED.

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Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, a

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certificate of appealability (COA) under 28 U.S.C. § 2253(c) is DENIED because

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petitioner has not demonstrated that “reasonable jurists would find the district

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court’s assessment of the constitutional claims debatable or wrong.” Slack v.

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McDaniel, 529 U.S. 473, 484 (2000).

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The clerk shall enter judgment in favor of respondent and close the file.

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SO ORDERED.

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DATED: Jan. 30, 2012
CHARLES R. BREYER
United States District Judge

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