Landry v. Arnold et al
Filing
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ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS re 1 Petition for Writ of Habeas Corpus filed by Lamar Landry. Signed by Judge Jon S. Tigar on December 22, 2015. (wsn, COURT STAFF) (Filed on 12/22/2015)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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LAMAR LANDRY,
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Case No. 14-cv-03570-JST
Petitioner,
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ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS
v.
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ERIC ARNOLD,
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Re: ECF No. 1
Respondent.
United States District Court
Northern District of California
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Before the Court is Lamar Landry’s petition for a writ of habeas corpus, filed pursuant to
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28 U.S.C. § 2254. ECF No. 1. Petitioner contends that his federal constitutional rights were
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violated by the trial court’s admission of statements his co-defendant made to a third party. For
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the reasons set forth below, the Court will deny the petition.
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I.
PROCEDURAL HISTORY
Petitioner Lamar Landry, along with DeShawn Landry and Eric Greer, were tried jointly as
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co-defendants.1 On April 25, 2011, a Santa Clara Superior Court jury found Petitioner guilty of
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felony assault by means of force likely to produce great bodily injury upon Anthony Mata and
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found that Petitioner personally inflicted great bodily injury on Mata in the course of that assault.
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The court subsequently found true the allegations that Petitioner had a prior serious felony
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conviction and a prior strike conviction. On June 16, 2011, Petitioner was sentenced to a total
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term of 14 years, consisting of three years for the felony assault, doubled to six years for his strike
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prior, plus three years for the great bodily injury enhancement, plus an additional five years for his
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prior serious felony conviction. The court also imposed a concurrent term for a probation
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violation. On March 13, 2013, the California Court of Appeal affirmed, and on May 22, 2013, the
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Three other co-defendants – John Downs, Brian Sabathia, and Christopher Leggett – entered into
plea deals and were not part of the trial.
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California Supreme denied his petition for review. On August 7, 2014, Petitioner filed this action.
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See ECF No. 1.
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II.
The California Court of Appeal described the evidence presented at trial:2
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1. Eyewitness and police testimony
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At approximately 1:30 a.m. on June 16, 2010, Dustin Isaacson was standing outside
the VooDoo Lounge, a nightclub where he worked as a security guard. The
nightclub was closing, and Isaacson was helping to clear the bar and reduce
congestion on the sidewalks, as other clubs in the area close at the same time.
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Isaacson heard a loud group of between 15 and 20 people crossing the street from
the direction of Toons, another nightclub near the VooDoo Lounge. As Isaacson
watched, this group stopped directly across from the VooDoo Lounge and some of
those near the front of the group turned towards the ones in the back and there was
shouting back and forth. Isaacson thought the groups would split up without further
incident, but as some of the people continued to argue, those near the edges
returned and a physical fight began. Isaacson called 911.
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United States District Court
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STATEMENT OF FACTS
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He continued to observe the fight, and saw a man, later identified as Mata, get
thrown to the ground and kicked at least twice in the head. Isaacson recognized a
security guard from Toons, whose name he did not know, trying to separate the
combatants and trying to pull people off of Mata.
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Isaacson flagged down a passing police car, and a second officer arrived just as the
fight was breaking up. By the time the police arrived, the other security guard had
returned to Toons.
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Isaacson, a trained EMT, went to assist Mata. Mata was lying face up, his eyes
swollen shut and he was bleeding from the mouth and nose. He had a three-inch
long laceration on his forehead, small cuts above his eyebrows and smaller cuts on
the side of his face. Mata was conscious and moaning, but could not respond to
questions.
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Armando Martinez, the manager of Toons, was aware that two Hispanic men had
been escorted out of the nightclub shortly before closing. He saw them outside and
tried to calm one of them down, then walked them to a nearby parking lot. Martinez
saw the two men again a short time later, between Toons and the VooDoo Lounge.
The one who had been most upset before was yelling at and taunting passersby,
while his companion remained quiet. As Martinez walked towards the two men,
several men in the crowd attacked the quieter man and perhaps 10 people went after
the louder man. The louder man (Mata) went down and stopped moving, as blood
pooled underneath him. Martinez was unable to identify anyone in the crowd of
people who attacked Mata and his companion.
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Mata went out with his friend, Joey, on the evening of June 15, 2010. Because Joey
was not dressed properly for one bar, they went to Toons, which has a more relaxed
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This summary is presumed correct. See Hernandez v. Small, 282 F.3d 1132, 1135 n.1 (9th Cir.
2002); 28 U.S.C. § 2254(e)(1).
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dress code. After consuming six or seven mixed drinks, Mata was carried out of
Toons by a bouncer. The next thing he remembers is waking up from a coma in a
hospital bed. Mata had bruises on his head, arms, and chest, as well as lacerations
on his arms, and stitches above his left eyebrow and on his nose, which left scars.
He had a broken nose and a broken bone underneath his eye. At the time of the
trial, Mata continued to suffer from short term memory loss and migraines.
After Mata returned to work, a light skinned Black or Latina woman stopped by
and talked to him, saying she was the girlfriend of one of the men who attacked
him. She “apologized on behalf of the gentleman,” gave Mata her phone number
and said he should call her if there was anything she could do to help with his
medical bills or anything. Though she seemed sincere and he was never threatened
by anyone, Mata was slightly afraid because if that woman could find him, so could
other people.
San Jose Police Lieutenant David Santos was patrolling in downtown San Jose that
evening and happened to be stopped for a red light at the intersection of Second
Street and Santa Clara Street, near Toons and the VooDoo Lounge at the time of
the incident. Four people ran up to his patrol SUV, and he heard a woman yell,
“They’re killing him.” Santos looked over and saw people running away, with one
man lying on the ground, a pool of blood around his head.
A person standing near Santos said, “They’re leaving in the black car.” Santos saw
a black Charger pull out of a parking lot, driving rapidly south on Second Street.
Santos pursued the vehicle, which made a right turn onto San Fernando Street.
Santos activated his lights and siren and the Charger stopped at the intersection of
San Fernando and First Streets.
Santos got out of his SUV, with his weapon drawn, and five people climbed out of
the Charger. The men were each looking in different directions and Santos noted
that none of them seemed to be paying any attention to him, which he thought odd.
He twice ordered the five men to get on the ground, but they did not move. As
Santos heard more sirens approaching, the five men ran off in different directions.
He broadcast that the men had run off, but Santos remained by the Charger as he
saw there were more people inside. Santos ordered them to come out of the car one
at a time. A total of four more people exited the vehicle: Greer, Lamar, Sabathia
and Leggett.
Officers Phillip Giusto and Jarrod Jesser responded to Santos’s reports about
stopping the Charger and that some of the suspects had fled northbound on First
Street. Santos described the suspects as Black males, including one wearing a white
t-shirt and one wearing a red baseball cap. Giusto and Jesser spotted a Black male
wearing a white t-shirt, hiding behind a pillar on Post Street at the end of Lightston
Street. Jesser contacted the man, later identified as Deshawn, and took him into
custody. As Deshawn was sitting on the curb, Jesser noticed spots of blood on
Deshawn’s white athletic shoes. Jesser took Deshawn’s shoes and placed them in
evidence collection bags.
Giusto also saw a second suspect, John Downs, wearing a red baseball cap, and
ordered him to lie on the ground. Santos identified Deshawn and Downs as two of
the five men who had run away from the Charger.
Adrian Gastelo was a security guard at Toons that evening, and tried to break up a
fight involving 25 to 30 people outside the nightclub. As the fight was underway,
he saw five or six people jump out of a Camry and join in. He overheard one of the
people from the Camry, say “there it goes,” or “there they go,” as he got out of the
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car. As Gastelo pulled people out of the melee, he could see Mata on the ground,
unconscious and bleeding from his head and neck. He tried to protect Mata from
further injury, and as the fight broke up, Gastelo heard sirens which caused the
remaining people to scatter. As he did not want to get involved, Gastelo first went
back into Toons and then went home. He returned to the nightclub after police
called and asked him to come back.
At trial, Gastelo testified that he did not, in fact, see the fight start, but only saw the
end of it. He did not see Deshawn, Lamar or Greer hit, punch or kick Mata while he
was on the ground, and he lied to the police when he identified them as being
involved in the fight. Gastelo said that he lied because, when he initially returned to
Toons at a police officer’s request, another unidentified plainclothes Black police
officer called him by his full name, said Gastelo had outstanding warrants and
urged him to cooperate fully. A uniformed police officer then came up and asked
him what he had seen. Gastelo was afraid he would be arrested if he did not tell the
police officer what he wanted to hear, so he described what he had overheard other
people in Toons saying about the fight. Based on what he had heard, he told police
he saw a tall Black man wearing a purple hat and a purple shirt hit Mata in the back
of the head. After Mata fell to the ground, a group of 11 or so Black males kicked
and punched him. However, Gastelo denied that he personally witnessed any of
that.
In September 2010, police went to Gastelo’s house to serve him with a subpoena to
testify at the preliminary hearing, but he was not home. In a subsequent phone call,
Gastelo told a police officer he would be at work on the afternoon of September 29,
but he was not there when police arrived with the subpoena. Gastelo was finally
served with the subpoena the following day. In spite of the subpoena, Gastelo failed
to appear at the preliminary hearing.
When asked about his failure to appear for the preliminary hearing, Gastelo
testified that he ignored it because he “hate[s] court.” Instead he went to work,
where he was arrested. After spending two days in jail, he was released and
subsequently testified at the preliminary hearing, where he said he did not see the
fight first-hand and thus did not recognize any of the defendants. According to
Gastelo, the only reason he falsely accused the defendants in the first place was in
order to avoid being arrested on the unspecified warrants referenced by the
unidentified plainclothes officer who spoke to him the night of the assault.
Police Officer Anson Kahaku contradicted Gastelo’s trial testimony. Kahaku
testified he was the officer who called Gastelo that morning and asked that he
return downtown to relate what he had seen. Kahaku said he never checked to see if
Gastelo had any outstanding warrants. When Gastelo returned to the nightclub that
evening, he was very cooperative.
According to Kahaku, Gastelo said he saw a tall Black man wearing a purple hat
and shirt hit Mata on the head from behind, knocking him to the ground.
Approximately 11 Black males then kicked and punched Mata as he lay on the
ground.
Kahaku took Gastelo to the corner of San Fernando and First Street, where he
identified Greer, Lamar, Sabathia and Leggett as part of the group that beat and
kicked Mata. Gastelo said Lamar was one of the people that exited the Camry to
join the fight and also said that he was the tall man in the purple shirt and hat that
hit Mata in the back of the head. Gastelo also specifically said that he witnessed
Greer and Lamar kick Mata as he lay on the ground.
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Kahaku then took Gastelo to another location, where Downs and Deshawn were
being held, for a second in-field identification. At the second location, Gastelo said
Downs had kicked Mata as he was on the ground. Gastelo said Deshawn was one
of the people who had jumped out of the Camry and joined the fight. However, he
did not indicate that he saw Deshawn actually hit or kick Mata at any time during
the fight. Gastelo heard Deshawn say as he and the others got out of the Camry that
they should handle it “one on one.”
There was no record in the San Jose Police Department computer system that any
officer ran a warrants check for Gastelo during the relevant time period. Also,
according to police records, there were four nonuniformed police officers on duty
that morning, none of whom were Black. The only uniformed Black officer on duty
that evening was Officer Vernon Todd, who assisted Santos after he stopped the
Charger. Todd testified he did not speak with Gastelo or any other witnesses
outside Toons that evening. Although police dispatch records showed Todd
arriving at the scene outside the VooDoo Lounge at approximately 1:35 a.m., Todd
said this was likely due to him not advising the dispatcher that he diverted to
Santos’s location instead of responding to Toons.
2. Forensic evidence
As with Deshawn’s shoes, Lamar’s shoes also appeared to have blood on them and
were taken into evidence, along with a purple shirt located in the back seat of the
Charger. DNA testing disclosed that Mata was the sole source of the blood on
Lamar’s and Deshawn’s shoes. Mata’s DNA was found in blood stains on Greer’s
shoes. Lamar, Deshawn and Greer also had blood on their clothing.
Criminalist Cordelia Willis studied the blood spatter on Deshawn and Lamar’s
shoes. According to Willis, the spatter on Deshawn’s right shoe consisted of small
droplets of blood, which traveled at medium velocity through the air for anywhere
from one to four feet before hitting the shoe. The patterns were characteristic of
stomping, kicking or other uses of force, and Deshawn’s right shoe was
approximately one foot away from the blood source at the time it was spattered.
However, Willis could not say whether or not Deshawn’s shoe came into direct
contact with a source of blood; rather, the most she could say was that the blood
droplets traveled through the air a short distance before striking his shoe.
3. Jailhouse telephone calls
The jury heard edited versions of audio tapes of phone calls made from jail by
Deshawn and Greer, as well as a recording of a jail visit between Deshawn and a
third party. The calls made by Deshawn were admissible only against him, and
concerned efforts to persuade various witnesses to testify either that he was not
present at the scene or that he was only trying to help Mata. In the phone calls,
Deshawn denied being present at the scene, but during the jail visit, he said the
witnesses from Toons could testify they saw him “helping the dude up and helping
the dude, ... who, who all got jumped.”
A call made by Greer on July 20, 2010, was played at trial and was admitted as a
declaration against penal interest and the jurors were instructed that they could also
consider it as evidence against all of the codefendants. The portion of that call
which was played for the jury consisted of the following exchange: “[Greer]: You
know, man. You know, how, you know how San Jose, Santa Clara, man, Santa
Clara is one of those counties that even if you don’t do nothing they gonna try to
get you for doing something. So you know.... [Third party]: Yeah. [Greer]: We, we
did something and we’re trying to prove that we didn’t do nothing. You know, it’s
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just gonna look a whole lot uglier. [Third party]: Yeah, I know what you mean.”
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4. Defense evidence
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Corey Maciel, a paramedic who responded to the scene of the fight and assisted
Mata, testified that Mata appeared confused and exhibited an altered level of
consciousness, giving inappropriate responses to questions. Maciel did not think
this was unusual given the injuries Mata had sustained that night.
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Investigator Anne Fields, hired by Deshawn’s counsel, testified she visited the
crime scene in December 2010 and took measurements.
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Torian Carrillo, an investigator employed by Fields, testified that she spoke to
Armando Martinez during her investigation of this case, but did not threaten him in
any way.
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Bruce Wiley, an investigator for the Santa Clara County District Attorney’s office,
testified he interviewed Gastelo, following the preliminary hearing, to discuss why
his testimony at that hearing differed from the statements he gave to the police the
night of the assault.
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People v. Landry, No. H037131, 2013 WL 837068, at *2–*5 (Cal. Ct. App. Mar. 7, 2013), review
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denied (May 22, 2013).
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III.
United States District Court
Northern District of California
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LEGAL STANDARD
This Court may entertain a petition for a 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 in
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violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose
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v. Hodges, 423 U.S. 19, 21 (1975).
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A district court may not grant a petition challenging a state conviction or sentence on the
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basis of a claim that was reviewed on the merits in state court unless the state court’s adjudication
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of the claim: “(1) resulted in a decision that was contrary to, or involved an unreasonable
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application of, clearly established Federal law, as determined by the Supreme Court of the United
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States; or (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); Williams v.
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Taylor, 529 U.S. 362, 412–13 (2000). Additionally, habeas relief is warranted only if the
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constitutional error at issue had a “substantial and injurious effect or influence in determining the
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jury’s verdict.” Penry v. Johnson, 532 U.S. 782, 795 (2001) (internal citation omitted).
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A state court decision is “contrary to” clearly established Supreme Court precedent if it
“applies a rule that contradicts the governing law set forth in [the Supreme Court’s] cases,” or if it
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“confronts a set of facts that are materially indistinguishable from a decision of [the Supreme]
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Court and nevertheless arrives at a result different from [its] precedent.” Williams, 529 U.S. at
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405–06. “Under the ‘unreasonable application’ clause, a federal habeas court may grant the writ if
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the state court identifies the correct governing legal principle from [the Supreme] Court’s
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decisions but unreasonably 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 concludes in its
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independent judgment that the relevant state-court decision applied clearly established federal law
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erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411.
Section 2254(d)(1) restricts the source of clearly established law to the Supreme Court’s
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jurisprudence. “[C]learly established Federal law, as determined by the Supreme Court of the
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Northern District of California
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United States” refers to “the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions
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as of the time of the relevant state-court decision.” Williams, 529 U.S. at 412 (internal quotation
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marks omitted). “A federal court may not overrule a state court for simply holding a view
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different from its own, when the precedent from [the Supreme Court] is, at best, ambiguous.”
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Mitchell v. Esparza, 540 U.S. 12, 17 (2003).
Here, as noted, the California Supreme Court summarily denied Petitioner’s petition for
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review. The Court of Appeal, in its opinion on direct review, addressed the claim Petitioner raises
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in the instant petition. The Court of Appeal thus was the highest court to have reviewed the claim
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in a reasoned decision, and, as to that claim, it is the Court of Appeal’s decision that this Court
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reviews here. See Ylst v. Nunnemaker, 501 U.S. 797, 803–04 (1991); Barker v. Fleming, 423
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F.3d 1085, 1091–92 (9th Cir. 2005).
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IV.
DISCUSSION
Petitioner argues that the admission of Greer’s jailhouse telephone conversation with
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Leggett without a limiting instruction or redaction violated his right to confrontation under the
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United States Constitution.3
The portion of that call played for the jury consisted of the following exchange:
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Petitioner also makes passing mention of a due process claim.
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[Greer]: You know, man. You know, how, you know how San Jose,
Santa Clara, man, Santa Clara is one of those counties that even if
you don’t do nothing they gonna try to get you for doing something.
So you know....
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[Leggett]: Yeah.
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[Greer]: We, we did something and we’re trying to prove that we
didn’t do nothing. You know, it’s just gonna look a whole lot uglier.
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[Leggett]: Yeah, I know what you mean.
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Landry, 2013 WL 837068, at *5. The trial court instructed the jury that this call could be
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considered as evidence against all defendants, including Petitioner. Ex. A4, CT vol. 4 at 1037.
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Petitioner now seeks habeas relief on the grounds that admission of this evidence violated
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the Confrontation Clause.
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A.
United States District Court
Northern District of California
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Applying the Confrontation Clause
The Sixth Amendment’s Confrontation Clause provides that in criminal cases the accused
has the right to “be confronted with witnesses against him.” U.S. CONST. AMEND. VI. The
ultimate goal of the Confrontation Clause “is to ensure reliability of evidence, but it is a
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procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but
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that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.”
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Crawford v. Washington, 541 U.S. 36, 61 (2004). The Confrontation Clause applies to all
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“testimonial” statements. See id. at 50–51. Although the Supreme Court has not provided a strict
definition of “testimonial statement,” it “typically [consists of] a solemn declaration or affirmation
made for the purpose of establishing or proving some fact.” Id. at 51 (internal quotation marks
and brackets omitted). Testimonial statements include, at a minimum, “prior testimony at a
preliminary hearing, before a grand jury, or at a former trial; and . . . police interrogations.” Id. at
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68.
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Before Crawford, Confrontation Clause analysis was governed by the “indicia of
reliability” test set out in Ohio v. Roberts, 448 U.S. 56, 65–66 (1980). Under the Roberts test,
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hearsay statements could be introduced only if the witness was unavailable at trial and the
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statements had “adequate indicia of reliability,” i.e., the statements fell within a “firmly rooted
hearsay exception” or bore “particularized guarantees of trustworthiness.” Roberts, 448 U.S. at
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66. As the Supreme Court made clear in Davis v. Washington, 547 U.S. 813 (2006), however, the
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Roberts test has no continuing validity post-Crawford. Nontestimonial hearsay, “while subject to
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traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause.” Davis,
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547 U.S. at 821. The Supreme Court reiterated this point the following term when discussing
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“Crawford’s elimination of Confrontation Clause protection against the admission of unreliable
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out-of-court nontestimonial statements.” Whorton v. Bockting, 549 U.S. 406, 420 (2007). As a
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result, nontestimonial statements are now outside the scope of the protection of the Confrontation
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Clause. See United States v. Larson, 495 F.3d 1094, 1099 n.4 (9th Cir. 2007) (en banc);
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Delgadillo v. Woodford, 527 F.3d 919, 924 (2008) (“Crawford rejected [the Roberts] framework
for analyzing Confrontation Clause violations” and nontestimonial statements no longer raise
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Northern District of California
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Confrontation Clause concerns).
The California Court of Appeal’s Decision
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B.
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The trial court admitted a portion of Greer’s jailhouse call with Leggett as a declaration
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against penal interest under California Evidence Code section 1230. On direct appeal, Petitioner
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argued that the trial court erroneously admitted this statement. Petitioner conceded that the
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statement was nontestimonial and limited his challenge to its admission under the declaration
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against penal interest exception. The California Court of Appeal concluded that the statement was
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nontestimonial and that the trial court did not err in admitting the statement against Petitioner.
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In his traverse, Petitioner argues for the first time that the California Court of Appeal
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applied the wrong legal standard in denying his Confrontation Clause claim because that court
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relied on Roberts, which was abrogated by Crawford. ECF No. 24 at 1. He argues that the Court
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of Appeal’s error requires this Court to review the claim de novo. Id.
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Preliminarily, the Court notes that “[a] traverse is not the proper pleading to raise
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additional grounds for relief.” Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994). The
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Court could reject Petitioner’s argument regarding the Court of Appeal’s use of the wrong legal
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standard on this ground alone. Nonetheless, the Court will proceed to consider Petitioner’s
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argument on the merits.
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Petitioner is correct that “[w]hen a state court errs by using the wrong legal rule or
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framework to analyze a petitioner’s claim, it “constitute[s] error under the ‘contrary to’ prong of §
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2254(d)(1).” Soto v. Grounds, No. C-13-5931 EMC (PR), 2015 WL 1349662, at *14 (N.D. Cal.
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Mar. 25, 2015) (quoting Frantz v. Hazey, 533 F.3d 724, 734 (9th Cir.2008)) In such an instance,
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the federal district court “must decide the habeas petition by considering de novo the constitutional
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issues raised.” Reyes v. Lewis, 798 F.3d 815, 825–26 (9th Cir. 2015) (citing Williams v. Taylor,
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529 U.S. 362, 405 (2000)).
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Here, the California Court of Appeal initially articulated the correct legal standard, noting
that “[u]nder Crawford, . . . the Confrontation Clause has no application to [out-of-court,
nontestimonial statements not subject to prior cross-examination] and therefore permits their
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Northern District of California
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admission even if they lack indicia of reliability.” Landry, 2013 WL 837068 at *9 (quoting
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Whorton v. Bockting, 549 U.S. 406, 420 (2007) and citing Davis v. Washington 547 U.S. 813, 821
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(2006)). However, that court then proceeded to analyze the statements at issue under the Roberts
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test to determine whether they could be admitted without violating the Confrontation Clause. Id.
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This was error. As the California Supreme Court noted in People v. Cage, 40 Cal. 4th 965 (2007),
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“the [United States Supreme Court] has made clear that Roberts . . . and its progeny are overruled
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for all purposes, and retain no relevance to a determination whether a particular hearsay statement
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is admissible under the confrontation clause.” Id. at 981 n.10. There simply is “no basis for an
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inference that, even if a hearsay statement is non-testimonial, it must nonetheless undergo a
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Roberts analysis before it may be admitted under the Constitution.” Id. Because the Court of
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Appeal used the wrong legal framework or rule to analyze Petitioner’s claim, this Court will
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review that claim de novo.
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C.
Analysis
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Petitioner argues that under Bruton v. United States, 391 U.S. 123 (1968), the admission of
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Greer’s phone call violated his Sixth Amendment right to confront witnesses and his Fourteenth
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Amendment right to due process. ECF No. 1 at 13. In Bruton, the Supreme Court held that
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admission of non-testifying co-defendant’s confession violated the defendant’s right to cross-
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examination under the Confrontation Clause, even though the jury had been instructed to disregard
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1
the confession in determining the defendant’s guilt. Bruton, 391 at 126.4
The Supreme Court has made clear that, after Crawford, the Confrontation Clause does not
2
3
apply to nontestimonial hearsay. Davis, 547 U.S. at 821; Crawford, 541 U.S. at 50–51. After
4
Crawford, a court must address the question of whether a statement is testimonial before it can
5
proceed with a Bruton analysis. See United States v. Dargan, 738 F.3d 643, 651 (4th Cir. 2013)
6
(“Bruton is simply irrelevant in the context of nontestimonial statements. Bruton espoused a
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prophylactic rule designed to prevent a specific type of Confrontation Clause violation.
8
Statements that do not implicate the Confrontation Clause, a fortiori, do not implicate Bruton.” );
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United States v. Berrios, 676 F.3d 118, 128 (3d Cir. 2012) (“[B]ecause Bruton is no more than a
by-product of the Confrontation Clause, the Court’s holding in Davis and Crawford likewise limit
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United States District Court
Northern District of California
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Bruton to testimonial statements”); United States v. Figueroa–Cartagena, 612 F.3d 69, 85 (1st Cir.
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2010) (“It is necessary to view Bruton through the lens of Crawford and Davis. The threshold
13
question . . . is whether the challenged statement is testimonial.”); United States v. Smalls, 605
14
F.3d 765, 768 n.2 (10th Cir. 2010) (“the Bruton rule, like the Confrontation Clause upon which it
15
is premised, does not apply to nontestimonial hearsay statements”); United States v. Johnson, 581
16
F.3d 320, 326 (6th Cir.2009) (“Because it is premised on the Confrontation Clause, the Bruton
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rule, like the Confrontation Clause itself, does not apply to nontestimonial statements.”); United
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States v. Vargas, 570 F.3d 1004, 1009 (8th Cir.2009) (Bruton does not apply to nontestimonial
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codefendant statements).
Here, Petitioner conceded on direct appeal that the statements were nontestimonial, see Ex.
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C1 at 13; Landry, 2013 WL 837068, at *9, and the California Court of Appeal so found. Landry,
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2013 WL 837068, at *9. Because all parties conceded that Greer’s hearsay statements were not
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testimonial, their admission did not infringe on Petitioner’s Sixth Amendment or due process
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rights and Bruton did not apply.
Petitioner now argues that if Crawford limits Bruton’s application only to testimonial
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4
Bruton’s holding was limited by later cases. See, e.g., Richardson v. Marsh, 481 U.S. 200, 211
(1987) (holding that Bruton applies only where the statement in question is facially incriminating).
In light of this Court’s conclusion that Bruton does not further explicate this area of the law.
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1
statements, Greer’s phone call should be deemed to be testimonial. See ECF No. 1 at 20–21.
2
Even if the argument had not been conceded below, however, this Court agrees with the Court of
3
Appeal that the statements made in Greer’s telephone call were correctly classified as
4
nontestimonial.
The statements at issue were made in the context of an informal telephone conversation
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6
between Greer and Leggett, without any active participation by a government official. See
7
Crawford, 541 U.S. at 51 (“An accuser who makes a formal statement to government officers
8
bears testimony in a sense that a person who makes a casual remark to an acquaintance does
9
not.”). Greer did not make the statements for the “primary purpose” of “establish[ing] or
prov[ing] past events potentially relevant to later criminal prosecution.” Davis, 547 U.S. at 822
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United States District Court
Northern District of California
10
(2006). The phone conversation between Greer and Leggett was the kind of informal
12
communication that courts have repeatedly held to be nontestimonial and outside the protection of
13
the Confrontation Clause. See, e.g., Desai v. Booker, 732 F.3d 628, 630 (6th Cir. 2013) (“the
14
Confrontation Clause no longer applied to nontestimonial hearsay such as the friend-to-friend
15
confession”); United States v. Berrios, 676 F.3d 118, 127–28 (3d Cir. 2012) (admission of
16
evidence of surreptitiously recorded jailhouse conversations between codefendants did not violate
17
the Confrontation Clause because they were not testimonial); United States v. Nguyen, 267 F.
18
App’x 699, 705 (9th Cir. 2008) (finding that statements made between co-conspirators in casual
19
conversation were “plainly non-testimonial” under Crawford); Saechao v. Oregon, 249 F. App’x
20
678, 679 (9th Cir. 2007) (affirming the determination that tape-recorded statement by a non-
21
testifying co-defendant made during a jailhouse telephone call to a friend was not “testimonial”).
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Because the hearsay statements were nontestimonial, the admission did not violate Petitioner’s
23
Confrontation Clause rights. He is not entitled to habeas relief on this claim.
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V.
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CERTIFICATE OF APPEALABILITY
Petitioner has not “made a substantial showing of the denial of a constitutional right,” 28
26
U.S.C. § 2253(c)(2), and this is not a case in which “reasonable jurists would find the district
27
court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S.
28
473, 484 (2000). Accordingly, a certificate of appealability is denied.
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CONCLUSION
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For the reasons stated above, the petition for a writ of habeas corpus is denied. The Clerk
shall close the file.
IT IS SO ORDERED.
Dated: December 22, 2015
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______________________________________
JON S. TIGAR
United States District Judge
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United States District Court
Northern District of California
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