Boutta v. Swarthout

Filing 20

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS re 1 Petition for Writ of Habeas Corpus filed by Michael Boutta. The petition is DENIED. A certificate of appealability will not issue. The Clerk shall enter judgment in favor of respondent and close the file. Signed by Judge William H. Orrick on 08/16/2013. (Attachments: # 1 Certificate/Proof of Service)(jmdS, COURT STAFF) (Filed on 8/16/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
Northern District of California

MICHAEL BOUTTA,
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Petitioner,
v.

ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS

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Case No. 11-3031 WHO (PR)

GARY SWARTHOUT, Warden,
Respondent.

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INTRODUCTION
Petitioner Michael Boutta seeks federal habeas relief from his state convictions.
For the reasons set forth below, the petition for such relief is DENIED.
BACKGROUND
In 2007, an Alameda County Superior Court jury found Boutta guilty of forcible

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rape. He received a sentence of 90 years-to-life in state prison. He appealed, lost, sought a

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state writ of habeas corpus, and lost again. This federal habeas petition followed.

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Evidence presented at trial showed that in 2006, Boutta raped S. Doe, a 64 year-old

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woman. (Ans., Ex. E at 3 (State Appellate Opinion, People v. Boutta, No. A120292, 2009

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WL 4878631 (Cal. Court. App. Dec. 17, 2009) (unpublished).) Boutta's defense, as he told

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the police before he was read his Miranda rights and as he testified at trial, was that he and

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Doe had consensual sex. During his testimony, he admitted he had twice before been

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convicted of rape. (Id. at 10-11.) Evidence of Boutta's guilt included the victim's

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testimony, testimony of two persons who heard the victim assert that she was raped, and

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testimony from a physician's assistant that (a) Doe had an abrasion on her nose, some

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bruises on her arm and tailbone, and (b) the "injuries in Doe's vaginal area were consistent

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with her having been raped." (Id. at 9).

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As grounds for federal habeas relief, Boutta alleges that (1) the admission of
statements he made to police violated his Miranda rights under the Fifth Amendment;
(2) the admission of, and the cross-examination regarding, his prior convictions violated

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Northern District of California

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the Fifth Amendment; and (3) his lawyer rendered ineffective assistance.
STANDARD OF REVIEW

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Under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"),

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this Court may entertain a petition for writ of habeas corpus “in behalf of a person in

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

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in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.

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§ 2254(a). The petition may not be granted with respect to any claim that was adjudicated

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

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in a decision that was contrary to, or involved an unreasonable application of, clearly

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established Federal law, as determined by the Supreme Court of the United States; or

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(2) resulted in a decision that was based on an unreasonable determination of the facts in

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light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

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

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court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question

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of law or if the state court decides a case differently than [the] Court has on a set of

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materially indistinguishable facts.” Williams (Terry) v. Taylor, 529 U.S. 362, 412–13

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(2000).

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“Under the ‘unreasonable application’ clause, a federal habeas court may grant the

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

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

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

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

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

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

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inquiry should ask whether the state court’s application of clearly established federal law

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was “objectively unreasonable.” Id. at 409.
When presented with a state court decision that is unaccompanied by a rationale for

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Northern District of California

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its conclusions, a federal court must conduct an independent review of the record to

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determine whether the state-court decision is objectively reasonable. See Delgado v.

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Lewis, 223 F.3d 976, 982 (9th Cir. 2000). This "[i]ndependent review is not a de novo

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review of the constitutional issue, but rather, the only method by which [a federal court]

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can determine whether a silent state court decision is objectively unreasonable." See

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Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "[W]here a state court's decision

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is unaccompanied by an explanation, the habeas petitioner's burden still must be met by

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showing there was no reasonable basis for the state court to deny relief." See Harrington

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v. Richter, 131 S. Ct. 770, 784 (2011).
DISCUSSION

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I.

Admission of Evidence of Police Interrogation
Boutta claims that the trial court violated his Fifth Amendment right against self-

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incrimination by allowing the introduction of evidence of the police interrogation. More

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specifically, he claims that the police failed to give Miranda warnings prior to questioning

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him, rendering inadmissible the confession to police later presented to the jury.

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The relevant facts belie Boutta's claim. At trial, Boutta's defense counsel was the
first to ask him questions about his statements to police:
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[Defense counsel] Q: Were you stopped by the police after that day?

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[Boutta] A: I think it was about two days later, yes.

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Q:

Where was that?

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A:

Across the street from my house. The gas station at the corner of Mowry
and Fremont, I believe.

Q:

Did they ask you to come down to the police station?

A:

Yes, they did. Actually, they detained me there for a second and I think it
was Detective Roberts, if I’m not mistaken. They came down and said that
they wanted to talk to me. They had an allegation of something that was
going on, and so they said it was not an arrest. I said okay. So I kind of
wondered what was going on. He said, “Would you mind coming down to
the police station so we could talk?” And I’m going like, “Sure. Why not?”

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Q:

Before that happened did they search your car?

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A:

Well, yes. The detective went into and took some pictures of the inside the
car, went in the back of the truck and opened it and took out a blue tarp.
Yeah. They searched the car.

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Q:

But you — you drove down to the police station?

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A:

I drove down to the police station voluntarily.

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Q:

And then did they interrogate you, question you?

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A:

Yes, they did.

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Northern District of California

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(Ans., Ex. B, Vol. 3 at 212–14.) When Boutta admitted during the interrogation that he

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had sex with the victim, he was arrested. (Id. at 214-215.) At trial, Boutta testified that the

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interrogation lasted for about two hours, and that no more than two police officers were

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present at any time. (Id. at 214.)

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The California Court of Appeal summarized the prosecutor's cross-examination of

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Boutta about the interrogation, during which part of the police audiorecording was played

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for the jury, as follows:

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Some portions of a police interview in which [Boutta] said he did not have
sex with Doe were played for the jury. [Boutta] admitted he lied to the
police when he said he did not have sex with Doe. He admitted he also lied
when he told the police that he gave Doe his tarp and left, and that Doe
returned the tarp to him when he ran into her the next day. He also
admitted he told the police that Doe never got in his car and that he did not
drive her anywhere. He also lied to the police when he said he was
nowhere near the eucalyptus grove. [Boutta] testified that he later admitted
to the police that he gave Doe a ride. The prosecutor asked, “is the sex that
you had with her consensual? Is that your position?” [Boutta] responded,
“I believe so, yes.” The prosecutor asked, “Or is she just another victim of
a serial rapist?” [Boutta] responded, “No, sir.”

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Northern District of California

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On redirect examination, [Boutta] testified he did not know his initial
statements to the police were being recorded. After learning his statements
were being recorded, he changed his statement. He explained that in his
experience, if statements are not being recorded, the police “can always
take things out of proportion . . . . That’s why I didn’t say anything until
afterwards.” He said he told the police the truth in the end, i.e., that he had
consensual sex with Doe.
(Ans., Ex. E at 11–12.)
Boutta raised this Miranda issue to the state courts only on collateral review. The
state supreme court, summarily and without citation, denied the petition.i (Ans., Ex. K.)
This Court must presume that the state supreme court’s summary disposition was an
adjudication of the merits of all claims raised in the petition. Richter, 131 S. Ct. at 784-85.
Because it was a summary disposition, this Court must conduct an independent review to
determine whether the state court's decision was "objectively reasonable." See Delgado,
223 F.3d at 982.
A person subjected to custodial interrogation must be advised that he has the right
to remain silent, that statements he makes can be used against him, that he has the right to
counsel, and that he has the right to have counsel appointed. Miranda v. Arizona, 384 U.S.
436, 444 (1966). These warnings must precede any custodial interrogation, which occurs
whenever law enforcement officers question a person after taking that person into custody
or otherwise significantly deprive a person of freedom of action. Id. The remedy for a

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violation of these requirements is the suppression, at the subsequent trial, of the statements

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made incriminating the defendant in the crime about which he was questioned. Id. at 479.

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However, Miranda protections are triggered "only where there has been such a

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restriction on a person's freedom as to render him 'in custody.'" Oregon v. Mathiason, 429

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U.S. 492, 495 (1977). Whether a person is in "custody or otherwise deprived of his

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freedom of action in any significant way," Miranda, 384 U.S. at 444, is answered by

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reviewing the totality of facts involved at the time of the alleged restraint. U.S. v.

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Redlightning, 624 F.3d 1090, 1103 (9th Cir. 2010) (citing U.S. v. Hayden, 260 F.3d 1062,

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1066 (9th Cir. 2001)). Relevant to this inquiry are (1) the language used by the officer to
summon the individual, (2) the extent to which he or she is confronted with evidence of

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Northern District of California

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guilt, (3) the physical circumstances of the interrogation, (4) the duration of the detention

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and (5) the degree of pressure applied to detain the individual. Id. Moreover, these

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factors are not exhaustive, as other factors may be pertinent to, or even dispositive of, the

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custody question. U.S. v. Bassignani, 560 F.3d 989, 996 (9th Cir. 2009). "Based upon a

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review of all the pertinent facts, the court must determine whether a reasonable innocent

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person in such circumstances would conclude that after brief questioning he or she would

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not be free to leave." U.S. v. Booth, 669 F.2d 1231, 1235 (9th Cir. 1981).

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Applying these legal principles to this case, the Court concludes that the state

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supreme court reasonably determined that Boutta was not in custody when he made his

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pre-arrest statements to police. The first factor (the summoning language) weighs in favor

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of the state court's determination. Boutta's own testimony shows that the police requested,

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rather than demanded or ordered, his presence at the police station and that he was not

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under arrest:
They came down and said that they wanted to talk to me. They had an
allegation of something that was going on, and so they said it was not an
arrest. I said okay. So I kind of wondered what was going on. He said,
‘Would you mind coming down to the police station so we could talk?”
And I’m going like, ‘Sure. Why not?’

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(Ans., Ex. B, Vol. 3 at 212.) That this was an invitation and not an order is made clear by

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Boutta's later admission that he voluntarily went to the police station. (Id. at 214.)
The second and third factors also support the state court's decision. The record

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shows that the police did not confront petitioner with evidence of his guilt. Rather, the

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officer informed petitioner that the police were conducting an investigation and wanted to

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ask petitioner questions related to that investigation. The third factor (the physical

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circumstances of the investigation) weighs slightly in favor of petitioner, considering that

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he was questioned at the police station. The fourth factor (the length of the detention)

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weighs in favor of the state court's decision. A two-hour interrogation, which included his

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pre- and post-arrest statements is not lengthy, or otherwise a sign of coercion or undue
pressure. The fifth factor (the degree of pressure applied to detain the individual) weighs

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Northern District of California

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in favor of the state's decision. Boutta willingly went to the police station and was not

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placed under arrest until he admitted that he had sex with the victim during the same time

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that she says he raped her. The record shows no indication of undue pressure or any

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overbearing police methods used to elicit Boutta's recantation of his initial lie that he had

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not had sex with the victim.
In sum, the record shows that Boutta was not in custody prior to the issuance of

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Miranda warnings. See Mathiason, 429 U.S. at 495. There was no constitutional

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violation. The state court's decision was not objectively unreasonable and is entitled to

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AEDPA deference. Boutta's claim is DENIED.

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II.

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Admission of Evidence of Prior Acts and Admissions
Boutta claims that his Fifth Amendment right against self-incrimination was

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violated when the trial court allowed the prosecutor to present evidence of his prior rape

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convictions and to cross-examine him in detail about those crimes. Petitioner raised no

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objection at trial.

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The state appellate court, sitting in direct review, rejected this claim because
petitioner waived his Fifth Amendment rights by testifying at trial:

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Here, [Boutta] took the stand and denied forcing [S.] Doe to the ground and
raping her. He claimed they engaged in foreplay and had consensual sex.
In light of this testimony, the facts relating to the rapes of Fern Doe and
Elise Doe were relevant to impeach [Boutta]’s credibility as a witness, i.e.,
to show he was not being truthful when he stated the sex was consensual,
and to show [Boutta]’s propensity to commit sexual offenses. [Boutta]
contends it is only the fact of a prior felony conviction, and not the
circumstances that led to the conviction, that is admissible in impeaching a
witness’s credibility . . . The prosecutor’s questions were permissible
because they related to the “matter[s] to which [Boutta] testified expressly
or impliedly on direct examination” and were “relevant to impeach his
credibility as a witness.” [Citation omitted.] There was no [F]ifth
[A]mendment violation.
(Ans., Ex. E at 15.)
Habeas relief is not warranted for four reasons. First, the state appellate court is

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correct that a defendant who chooses to testify on his own behalf runs the risk of having

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his credibility impeached like any other witness, Brown v. United States, 356 U.S. 148,

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154-55 (1958), and evidence of prior crimes may properly be used to draw inferences

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

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(1997).

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Second, habeas relief can be granted on this sort of claim only if there are no

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permissible inferences a jury can draw from the evidence to find guilt. Jammal v. Van de

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Kamp, 926 F.2d 918, 920 (9th Cir. 1991). In this case, it would be permissible for Boutta's

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jury to infer that his prior convictions weighed against his credibility.

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Third, Boutta's claim would fail even if the evidence were irrelevant or prejudicial.

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"Although the [Supreme] Court has been clear that a writ should be issued when

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constitutional errors have rendered the trial unfair (citation omitted), it "has not yet made a

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clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due

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process violation sufficient to warrant issuance of the writ." Holley v. Yarborough, 568

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F.3d 1091, 1101 (9th Cir. 2009). The California Court of Appeal did not reach a decision

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

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

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

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

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

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

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860, 866-67 (9th Cir. 2006).
The state court's decision was reasonable and is entitled to AEDPA deference.

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Accordingly, the claim is DENIED.

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III.

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Assistance of Counsel
Boutta claims that his defense counsel rendered ineffective assistance. Specifically,

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Northern District of California

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he contends that counsel failed to (A) object to the admission of his taped statements to

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police, (B) raise a Fourth Amendment claim, and (C) provide effective assistance of

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counsel by encouraging him to testify. The state supreme court summarily denied the

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habeas petition containing these claims. (Ans., Ex. K.) Accordingly, this Court must

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conduct an independent review to determine whether the state court's decision was

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"objectively reasonable." See Delgado, 223 F.3d at 982.

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Claims of ineffective assistance of counsel are examined under Strickland v.

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Washington, 466 U.S. 668 (1984). In order to prevail on a claim of ineffectiveness of

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counsel, the petitioner must establish two factors. First, he must establish that counsel's

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performance was deficient, i.e., that it fell below an "objective standard of reasonableness"

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under prevailing professional norms, id. at 687-68, "not whether it deviated from best

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practices or most common custom," Richter, 131 S. Ct. at 788 (citing Strickland, 466 U.S.

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at 690 ). "A court considering a claim of ineffective assistance must apply a 'strong

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presumption' that counsel's representation was within the 'wide range' of reasonable

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professional assistance." Id. at 787 (quoting Strickland, 466 U.S. at 689).

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Second, he must establish that he was prejudiced by counsel's deficient

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performance, i.e., that "there is a reasonable probability that, but for counsel's

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unprofessional errors, the result of the proceeding would have been different." Strickland,

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466 U.S. at 694. A reasonable probability is a probability sufficient to undermine

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confidence in the outcome. Id. Where the defendant is challenging his conviction, the

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appropriate question is "whether there is a reasonable probability that, absent the errors,

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the factfinder would have had a reasonable doubt respecting guilt." Id. at 695. "The

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likelihood of a different result must be substantial, not just conceivable." Richter, 131 S.

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Ct. at 792 (citing Strickland, 466 U.S. at 693).

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The standards of both 28 U.S.C. § 2254(d) and Strickland are "highly deferential
. . . and when the two apply in tandem, review is doubly so." Id. at 788 (quotation and
citations omitted). "The question [under § 2254(d)] is not whether counsel's actions were

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Northern District of California

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reasonable. The question is whether there is any reasonable argument that counsel

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satisfied Strickland's deferential standard." Id.

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A.

Fifth Amendment Objection

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This Court concluded above that Boutta has failed to show that his underlying

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Miranda claim has merit. That failure dooms any attempt to show that an objection by

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counsel would have been successful. Failure to raise a meritless objection is not grounds

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for establishing deficient performance or prejudice. See, e.g., Juan H. v. Allen, 408 F.3d

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1262, 1273 (9th Cir. 2005). In its independent review of the record, the Court determines

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that the state court's decision was not objectively unreasonable. This claim is DENIED.

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B.

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Boutta claims that counsel “never investigated to see weather [sic] his client was

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seized and deprived of his [F]ourth and [F]ifth [Amendment rights].” (Pet. at 11.) This

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undetailed, conclusory claim must be denied because it does not meet the specifity

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requirements of Mayle v. Felix, 545 U.S. 644, 655 (2005). Also, Boutta's testimony that he

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voluntarily went to the police station voids any claim that he was illegally seized.

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Counsel, then, had no reason to investigate this claim, and therefore did not render a

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deficient performance. In its independent review of the record, the Court determines that

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Fourth Amendment Objection

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the state court's decision was not objectively unreasonable. This claim is DENIED.

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C.

Advising Boutta to Testify

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Boutta alleges that he also received ineffective assistance of counsel because his

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lawyer encouraged him to testify, which allowed Boutta's prior rape convictions to be used

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in cross-examination.ii

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His counsel concluded, however, that the only available defense -- consent --

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required Boutta to testify at trial. (Pet., Part 2 at 25.) The victim alleged Boutta raped her,

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while Boutta countered that the two had had consensual sex. There was no evidence to

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support Boutta's "consent" defense other than Boutta's testimony. In counsel's mind, there
was no other defense. With Boutta's testimony, the case would hinge on credibility.

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Northern District of California

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Under these circumstances, and with the evidence presented by the prosecution, defense

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counsel's advice that Boutta should testify was a reasonable tactical decision well within

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the wide range of reasonable professional assistance.

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For the same reasons, Boutta has failed to show prejudice. There was testimony

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from the victim, corroborated by physical evidence and the testimony of the treating

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physician's assistant, that Boutta raped her. On such a record, Boutta cannot show a

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reasonable probability that, absent counsel's alleged errors, the factfinder would have had a

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reasonable doubt respecting guilt. In sum, Boutta fails to show that there is no reasonable

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argument that counsel did not satisfy Strickland's deferential standard. In its independent

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review of the record, the Court determines that the state court's decision was not

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objectively unreasonable.

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Accordingly, all ineffective assistance of counsel claims are DENIED.
CONCLUSION

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The state court’s adjudication of Boutta's claims did not result in decisions that were

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

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did they result in decisions that were based on an unreasonable determination of the facts

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

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

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

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

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from the Ninth Circuit.

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

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IT IS SO ORDERED.

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Dated: August ___, 2013
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_________________________
WILLIAM H. ORRICK
United States District Judge

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United States District Court
Northern District of California

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ENDNOTES

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i

The very first court Boutta presented the first and third claims to was the state superior
court, which disposed of all claims on procedural grounds. (Ans., Ex. I.) Because that
court disposed of the petition on procedural grounds, this Court will regard the state
supreme court's summary denial as the final disposition on the merits.
ii

It is not clear that Boutta presents this claim for federal habeas review. The Court
addresses it in an abundance of caution.

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