Payne v. Biter et al

Filing 13

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS. Signed by Judge Richard Seeborg on 5/22/12. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 5/22/2012)

1
2

*E-Filed 5/22/12*

3
4
5
6
7

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10
United States District Court
For the Northern District of California

8

SAN FRANCISCO DIVISION

11
12

OSCAR L. PAYNE,
Petitioner,

13
14
15

No. C 11-1431 RS (PR)
ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS

v.
M.D. BITER and
KELLEY HARRINGTON,

16

Respondents.
/

17
18

INTRODUCTION

19
20
21

This is a federal habeas corpus action filed by a pro se state prisoner pursuant to 28
U.S.C. § 2254. For the reasons set forth below, the petition is DENIED.
BACKGROUND

22
23

In 2008, an Alameda County Superior Court jury found petitioner guilty of attempted

24

murder, assault with a firearm, being a felon in possession of a firearm, and shooting at a

25

vehicle. Consequent to the verdicts, petitioner was sentenced to 55 years-to-life in state

26

prison. Petitioner was denied relief on state judicial review. This federal habeas petition

27

followed.

28

No. C 11-1431 RS (PR)
ORDER DENYING PETITION

1

Evidence presented at trial established that in 2006 petitioner shot Marco Ramirez in

2

the back after an argument over a heroin purchase. Prior to the shooting, Ramirez,

3

accompanied by Juan Garibary and Guillermo Cervantes Perez, drove to petitioner’s house to

4

sell heroin to petitioner’s sister, Joyce. During the sale, petitioner and Ramirez had a heated

5

argument in the driveway of the house while Ramirez was sitting in his car. Petitioner

6

testified at trial that Ramirez took out a gun, which petitioner then wrestled away from him

7

before retreating into the house. He also testified that he saw the three men go to the

8

vehicle’s trunk and take out a gun. The men returned to the car, initially drove off, turned

9

around and rolled slowly by petitioner’s house. Joyce and her daughter, Mayling, remained

United States District Court
For the Northern District of California

10

on the porch during this time. (Ans., Ex. 3 at 1–2.)

11

Petitioner testified that he emerged from his house carrying the revolver he took from

12

Ramirez, and strode toward the car. According to petitioner, he yelled at the car’s occupants

13

to leave, and that as he approached the car, he saw Cervantes Perez lean forward and point a

14

gun at him. Petitioner testified that he (petitioner) then fired two shots at close range through

15

the open window of the driver’s side window, and then fled into the house.

16

Petitioner asserted at trial that he acted in self-defense, fearing for his life and the lives

17

of his family members. None of the numerous other witnesses, however, saw Ramirez point

18

a gun at petitioner, nor did they see Ramirez, nor anyone else in his vehicle, handle a gun that

19

day. Ramirez had been shot twice in the back. (Id. at 2–4.) As grounds for federal habeas

20

relief, petitioner claims that the trial court violated his due process rights when it admitted

21

evidence of a prior conviction.

22

STANDARD OF REVIEW

23

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

24

custody pursuant to the judgment of a State court only on the ground that he is in custody in

25

violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).

26

The petition may not be granted with respect to any claim that was adjudicated on the merits

27

in state court unless the state court’s adjudication of the claim: “(1) resulted in a decision

28
2

No. C 11-1431 RS (PR)
ORDER DENYING PETITION

1

that was contrary to, or involved an unreasonable application of, clearly established Federal

2

law, as determined by the Supreme Court of the United States; or (2) resulted in a decision

3

that was based on an unreasonable determination of the facts in light of the evidence

4

presented in the State court proceeding.” 28 U.S.C. § 2254(d). “Under the ‘contrary to’

5

clause, a federal habeas court may grant the writ if the state court arrives at a conclusion

6

opposite to that reached by [the Supreme] Court on a question of law or if the state court

7

decides a case differently than [the] Court has on a set of materially indistinguishable facts.”

8

Williams (Terry) v. Taylor, 529 U.S. 362, 412–13 (2000).
“Under the ‘unreasonable application’ clause, a federal habeas court may grant the

9
United States District Court
For the Northern District of California

10

writ if the state court identifies the correct governing legal principle from [the] Court’s

11

decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at

12

413. “[A] federal habeas court may not issue the writ simply because that court concludes in

13

its independent judgment that the relevant state-court decision applied clearly established

14

federal law erroneously or incorrectly. Rather, that application must also be unreasonable.”

15

Id. at 411. A federal habeas court making the “unreasonable application” inquiry should ask

16

whether the state court’s application of clearly established federal law was “objectively

17

unreasonable.” Id. at 409.
DISCUSSION

18
19
20

I.

Admission of Evidence of Prior Conviction
The trial court, for purposes of impeachment, admitted evidence of five of petitioner’s

21

prior convictions, including a 1987 attempted murder conviction. The trial “court relied

22

upon the element of intent to kill in the [1987] prior attempted murder conviction as

23

reflecting moral turpitude, therefore making the prior admissible for impeachment.” (Ans.,

24

Ex. 3 at 7.) Petitioner claims that the admission of the 1987 conviction violated his due

25

process right to a fair trial because the conviction was more prejudicial than probative,

26

especially considering that there were other prior felonies that could be used to impeach his

27

credibility.

28
3

No. C 11-1431 RS (PR)
ORDER DENYING PETITION

1

The state appellate court concluded that the evidence was properly admitted under

2

state law, and that any admission was harmless, considering the weight of evidence against

3

petitioner:

4
5
6
7
8
9
United States District Court
For the Northern District of California

10
11
12
13
14
15

Given the narrow inquiry which ultimately must have consumed the jury’s
attention, we cannot find the admission of his prior attempted murder
conviction was prejudicial. This case was not a whodunit. The fact that
[petitioner] fired two shots into Ramirez’s Cadillac was not disputed. He
admitted as much at trial. Thus, the nub of the case was [petitioner]’s state of
mind when he fired into the car.
Unless the jurors were to believe [petitioner]’s own description of his state of
mind unquestioningly, such a matter could be determined only by inference
from the facts otherwise established. Here, the testimony established that
[petitioner] strode purposefully and swiftly toward the Cadillac after he
emerged from his house the second time, carrying the gun down close to his
side. He claimed he was yelling the whole time for the people in the Cadillac
to “get out of here,” but none of the neighbors heard him make such remarks.
Despite his claimed fear, he did not call the police and did not tell anyone else
to call the police until after he had shot into the Cadillac. Although he claims
to have been defending Mayling and Joyce against possible violence by the
occupants of the Cadillac, he did not warn them to retreat into the house for
safety or otherwise attempt to avoid the violence. Instead, he emerged from the
house and confronted the men in the Cadillac with gun drawn in a preemptive
strike, even though he claimed he had not examined the gun to see if it was
loaded. These factors call into question the credibility of [petitioner]’s account
of the events and his claims of self-defense and defense of others.

16

(Ans., Ex. 3 at 10–11.) The state appellate court further noted that the physical evidence

17

supported the testimony of Cervantes Perez and that of “neutral third parties who observed

18

the shooting from across the street.” (Id. at 11.)

19

Petitioner’s claim fails. First, the state court reasonably determined that the evidence

20

was properly admitted. A defendant who chooses to testify on his own behalf runs the risk of

21

having his credibility impeached like any other witness. Brown v. United States, 356 U.S.

22

148, 154–57 (1958). Evidence of prior crimes may properly be used to draw inferences

23

about a witness’s credibility. See, e.g., Old Chief v. United States, 519 U.S. 172, 176 n.2

24

(1997). Furthermore, even if the evidence were not properly admitted, habeas relief can be

25

granted only if there are no permissible inferences a jury can draw from the evidence.

26

Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991). It would be permissible for the

27

jury to infer that his prior attempted murder conviction showed dishonesty or a lack of

28
4

No. C 11-1431 RS (PR)
ORDER DENYING PETITION

1
2

truthfulness.
Second, petitioner has not shown prejudice, the evidence of his guilt being quite

3

strong. As outlined in detail above, not only did numerous eyewitness accounts contradict

4

petitioner’s testimony, the physical evidence corroborated the other witnesses’ testimony and

5

contradicted petitioner’s version of events. The weight and power of this evidence depended

6

on credibility. The jury did not find petitioner credible, and was persuaded of his guilt by

7

testimonial and physical evidence. Not only must federal habeas courts accord credibility

8

determinations deference, see Knaubert v. Goldsmith, 791 F.2d 722, 727 (9th Cir. 1986),

9

factual determinations such as credibility are, under 28 U.S.C. § 2254(e)(1), “presumed to be

United States District Court
For the Northern District of California

10
11

correct.”
Third, petitioner’s claim would fail even if the evidence were irrelevant or prejudicial.

12

The Supreme Court “has not yet made a clear ruling that admission of irrelevant or overtly

13

prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the

14

writ.” Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009).

15

Finally, insofar as petitioner claims that the admission of the evidence violated his due

16

process rights to have character or propensity evidence excluded, such claim fails. Because

17

the Supreme Court has reserved this issue as an “open question,” the Ninth Circuit has held

18

that a petitioner’s due process right concerning the admission of propensity evidence is not

19

clearly established for purposes of review under AEDPA. Alberni v. McDaniel, 458 F.3d

20

860, 866–67 (9th Cir. 2006). Accordingly, the claim is DENIED.

21

CONCLUSION

22

The state court’s adjudication of the claim did not result in a decision that was

23

contrary to, or involved an unreasonable application of, clearly established federal law, nor

24

did it result in a decision that was based on an unreasonable determination of the facts in

25

light of the evidence presented in the state court proceeding. Accordingly, the petition is

26

DENIED.

27
28
5

No. C 11-1431 RS (PR)
ORDER DENYING PETITION

A certificate of appealability will not issue. Reasonable jurists would not “find the

1
2

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

3

McDaniel, 529 U.S. 473, 484 (2000). Petitioner may seek a certificate of appealability from

4

the Court of Appeals. The Clerk shall enter judgment in favor of respondents and close the

5

file.

6
7

IT IS SO ORDERED.
DATED: May 22, 2012
RICHARD SEEBORG
United States District Judge

8
9
United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6

No. C 11-1431 RS (PR)
ORDER DENYING PETITION