Llamas v. Seibel

Filing 16

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS. Signed by Judge William H. Orrick on 08/31/2017. (jmdS, COURT STAFF) (Filed on 8/31/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 LEONARD L. LLAMAS, Plaintiff, 8 9 10 ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS v. KIMBERLY A SEIBEL, Defendant. 11 United States District Court Northern District of California Case No. 16-cv-05812-WHO 12 13 INTRODUCTION 14 Petitioner Leonard L. Llamas seeks federal habeas relief from his state conviction of 15 willful infliction of corporal injury on a cohabitant. Petitioner raises six claims for habeas relief: 16 (1) the trial court erred by denying his Faretta motion to represent himself; (2) defense counsel 17 rendered ineffective assistance by failing to present evidence showing the condition of the 18 petitioner’s clothing and body at the time of his arrest; (3) defense counsel rendered ineffective 19 assistance by failing to object to inadmissible hearsay statements by bystanders at the scene; (4) 20 defense counsel rendered ineffective assistance by failing to object to prosecutorial misconduct 21 during closing argument; (5) the trial court coercively handled the deadlocked jurors; and (6) 22 cumulative error. For the reasons set forth below, none of these claims have merit. Llamas’s 23 petition for habeas relief is DENIED. BACKGROUND 24 25 A. 26 In February 2012, a Santa Clara County Superior Court jury found Llamas guilty of one Procedural Background 27 count of willful infliction of corporal injury on his cohabitant, Stephanie Martinez. Cal. Penal 28 Code § 273.5(a). Llamas received a sentence of eight years in state prison. Petition (“Pet.”) at 11 1 (Dkt. No. 1). On June 23, 2015, Llamas’s conviction and sentence were affirmed on his direct 2 appeal in the California Court of Appeal. Pet., Ex. D (“State Appellate Opinion, People v. 3 Llamas, No. H039026”) (Dkt. No. 1-1). He raised almost all of the claims he asserts here on 4 direct appeal, but did not raise his ineffective assistance of counsel claim for failure to introduce 5 exculpatory photographs. See Answer, Ex. D (Dkt. No. 13-12). 6 While his direct appeal was pending, Llamas filed a petition for a writ of habeas corpus 7 with the California Court of Appeal, asserting all the claims he raises here except his Faretta 8 claim. See Answer, Ex. J (Dkt. No. 13-13). His petition for a writ of habeas corpus was 9 summarily denied by the California Court of Appeal on June 23, 2015, the same day as his direct 10 United States District Court Northern District of California 11 appeal. Pet., Ex. E (Dkt. No. 1-1). Llamas then filed a petition for habeas relief before the California Supreme Court, raising 12 his three ineffective assistance claims and a claim of cumulative error. He did not raise the 13 Faretta claim or the jury coercion claim in his Supreme Court habeas petition that he brings here 14 as independent claims. See Answer, Ex. M (Dkt. No. 13-13). On September 30, 2015, the 15 California Supreme Court denied Llamas’s petition for review in People v. Leonard Llamas and 16 summarily denied his petition for writ of habeas corpus. Pet., Ex. F (Dkt. No. 1-1), Pet., Ex. G 17 (Dkt. No. 1-1). This federal habeas petition followed. 18 B. 19 The following factual background is taken from the order on direct appeal of the California 20 21 22 23 24 25 26 27 28 Factual Background Court of Appeal: In October 2011 Martinez and defendant spent approximately two hours at a club called Sabor in downtown San Jose, during which time Martinez drank two alcoholic drinks. Martinez and defendant had been dating for over three years and she was pregnant with his child. Police asked the couple to leave Sabor around 11:00 p.m. due to an altercation between Martinez and two or four other women. Martinez and defendant proceeded to a second club, where they stayed until 2:00 a.m. After leaving the second club, Martinez was assaulted on the street and the identity of the assailant was disputed at trial. According to Martinez’s testimony, “those girls” with whom she had an altercation at Sabor attacked her, leaving her with a black eye and a bloody nose. Martinez testified that defendant tried to protect her and picked her up after the girls fled. 2 1 2 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 A different version of the assault came from Tarrel Thomas, who testified for the prosecution at defendant’s trial. Thomas testified that between 2:00 and 2:30 a.m., he and a few friends were talking on the sidewalk near the intersection of St. James Street and East Third Street in downtown San Jose. . . . Defendant approached the group, asked for a cigarette, and told them “about how he had just knocked somebody over trying to help his girlfriend.” When Martinez walked around the corner into Thomas’s view, defendant pointed her out and referred to her as a “bitch” and “ ‘my baby mama.’ ” As defendant left to join Martinez, Thomas turned and began talking to his friends and then “heard the sound of somebody getting hit.” Thomas turned and saw Martinez on the ground about 15-20 yards away, with defendant punching and kicking her and he also saw defendant hit Martinez by her hair. At the time, Martinez “[l]ooked like she was knocked out.” Thomas stated that defendant was the only person he saw assault Martinez. Thomas and his friends confronted defendant, who threatened them and then eventually “walked off” before the police arrived. . . . Robert Van Peteghem, a firefighter and paramedic for the San Jose Fire Department, was the first responder who initially treated Martinez at the scene. When Van Peteghem arrived, Martinez was lying face up surrounded by bystanders at the corner of St. James Street and East Third Street. Martinez had a hematoma on her head and was actively bleeding from her mouth and nose. During the interaction, Martinez had an “altered level of consciousness.” She knew her name but had difficulty answering other questions. When Van Peteghem asked her how she received her injuries, “[s]he said her boyfriend hit her.” Defendant was arrested a short time later a few blocks away. Pet., Ex. D at 2–3. LEGAL STANDARD 19 Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), this Court 20 may entertain a petition for writ of habeas corpus “in behalf of a person in custody pursuant to the 21 judgment of a State court only on the ground that he is in custody in violation of the Constitution 22 or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a). The petition may not be granted 23 with respect to any claim that was adjudicated on the merits in state court unless the state court’s 24 adjudication of the claim: “(1) resulted in a decision that was contrary to, or involved an 25 unreasonable application of, clearly established Federal law, as determined by the Supreme Court 26 of the United States; or
(2) resulted in a decision that was based on an unreasonable determination 27 of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). 28 “Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state court arrives 3 1 at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state 2 court decides a case differently than [the] Court has on a set of materially indistinguishable facts.” 3 Williams (Terry) v. Taylor, 529 U.S. 362, 412-13 (2000). “Under the ‘unreasonable application’ clause, a federal habeas court may grant the writ if 4 5 the state court identifies the correct governing legal principle from [the] Court’s decisions but 6 unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. “[A] federal 7 habeas court may not issue the writ simply because that court concludes in its independent 8 judgment that the relevant state court decision applied clearly established federal law erroneously 9 or incorrectly. Rather, that application must also be unreasonable.” Id. at 411. A federal habeas court making the “unreasonable application” inquiry should ask whether the state court’s 11 United States District Court Northern District of California 10 application of clearly established federal law was “objectively unreasonable.” Id. at 409. 12 DISCUSSION 13 Petitioner alleges that the trial court erred by denying his Faretta motion to represent 14 himself; that his counsel was ineffective for several different reasons; that the trial court erred by 15 coercing the deadlocked jury; and that the cumulative errors at trial merit relief. Each of these 16 claims for relief is addressed below. 17 I. 18 FARETTA MOTION Llamas claims that the trial court erroneously denied his motion to represent himself at 19 trial, in violation of his constitutional right to self-representation, and that this error was 20 prejudicial. Pet. at 14. He asserts that he brought a timely Faretta motion to represent himself 21 and that, as a result, the trial court was required to grant it. Pet. at 35. Conversely, he states that if 22 the motion was untimely, the trial court abused its discretion by denying his motion. Pet. at 39. 23 24 25 26 27 28 Llamas brought this same claim before the state appellate court on direct appeal, which summarized the relevant facts as follows: After the jury was empaneled, defendant made an oral Faretta motion to dismiss his appointed attorney and represent himself. The court explained the potential disadvantages of waiving his Sixth Amendment right to counsel and defendant acknowledged them. Though the case had previously been in a time-not-waived posture, defendant indicated he was requesting a “time waiver” along with his request to represent himself. Defendant sought a continuance so that he could 4 1 2 3 4 5 6 investigate the case, which he estimated would take six months. He stated that he did not make the request earlier because he was previously unaware that Martinez would be unavailable. When the court asked defendant if he would be willing to proceed even if the court denied his request for a continuance, defendant said he would be willing to go forward but that the trial “would be a circus act ... because I would be fumbling the ball” and that his “defense would end up being a no defense.” Pet., Ex. D at 4. The state appellate court concluded that Llamas’s Faretta motion was untimely because he made the request after the jury was empaneled and because he did not have a reasonable excuse 8 for not moving earlier. Id. at 9-10. It further held that, under California law, the trial court did not 9 abuse its discretion in denying Llamas’s motion because granting the motion would have resulted 10 in a substantial delay of the proceedings. Because I conclude that the California Court of Appeal’s 11 United States District Court Northern District of California 7 decision was not clearly contrary to clearly established Supreme Court precedent, habeas relief is 12 not appropriate on this claim. 13 A criminal defendant has a Sixth Amendment right to conduct his own defense. See 14 Faretta v. California, 422 U.S. 806, 832 (1975). In Faretta, the Supreme Court held that a trial 15 court may violate this right by denying a defendant’s motion to represent himself, often called a 16 Faretta motion. Id. at 835. However, as “Faretta itself and later cases have made clear [] the 17 right of self-representation is not absolute.” Indiana v. Edwards, 554 U.S. 164, 171 (2008). For 18 example, in holding that Faretta’s request to represent himself should have been granted, the Court 19 relied heavily on the specific facts of his case, noting that the request was made weeks before trial, 20 was clear and unequivocal, and that Faretta was literate, competent, and understanding. Id. at 835. 21 The Court’s reliance on these facts indicates that a court is not clearly required to grant a Faretta 22 request under different circumstances. When a court must grant a Faretta motion and when it may 23 deny one remains largely unsettled by the Supreme Court. 24 The Supreme Court has not clearly addressed when a Faretta motion must be made in 25 order to be “timely.” See Marshall v. Taylor, 395 F.3d 1058, 1061 (9th Cir. 2005). Faretta lays 26 out an implicit timing element, as the Court emphasized in its discussion and holding that Faretta’s 27 motion should have been granted, in part, because it was brought “weeks before trial.” Id. at 28 1060-1061; Moore v. Calderon, 108 F.3d 261, 265 (9th Cir. 1997). But, beyond establishing an 5 1 implicit timing element, and making clear that a motion brought “weeks before trial” is “timely,” 2 Faretta, does not provide any additional guidance on when a Faretta motion is timely or untimely 3 and the Supreme Court has not clarified the issue in any subsequent decisions. For the purposes of 4 AEDPA review, “[b]ecause the Supreme Court has not clearly established when a Faretta request 5 is untimely, other courts are free to do so as long as their standards comport with the Supreme 6 Court’s holding that a request ‘weeks before trial’ is timely.” Marshall, 395 F.3d at 1061. 7 The California Court of Appeal found Llamas’s Faretta request untimely because it was 8 made on the first day of trial, after the jury had been empanelled. See Pet., Ex. D at 9-10. 9 Because the timing of Llamas’s request was made on much shorter notice than the “weeks before trial” in Faretta, the state court’s conclusion that the request was untimely does not run afoul of 11 United States District Court Northern District of California 10 the Supreme Court’s Faretta ruling or any other clearly established Supreme Court precedent. See 12 Marshall, 395 F.3d at 1061 (California Court of Appeal did not violate clearly established 13 Supreme Court precedent by concluding that a Faretta motion, brought on the first day of trial was 14 untimely). The Court of Appeal’s conclusion that Llamas’s request was untimely was not contrary 15 to clearly established federal law. 16 Llamas argues that, even if the request to represent himself was untimely, the trial court 17 abused its discretion by denying the request. Llamas points to California cases for the proposition 18 that when a Faretta motion is deemed “untimely” it is left to the discretion of the trial court to 19 determine whether the request should be granted or denied. See People v. Lynch, 50 Cal. 4th 693, 20 721-722 (Cal. Ct. App. 2010); People v. Windham, 19 Cal. 3d 121, 128 (Cal. Ct. App. 1997). He 21 argues that, under these cases, a trial court abuses its discretion by denying a Faretta request that 22 is made for “a legitimate reason, where there is no request for a continuance, [and] where there is 23 no reason to believe there would be any delay or disruption.” See Nicholson, 24 Cal. App. 4th 24 584, 593 (Cal. Ct. App. 1994). 25 Llamas’s assertion that the trial court abused its discretion under these California 26 precedents is not a cognizable habeas claim in federal court. “[I]t is not the province of a federal 27 habeas court to reexamine state-court determinations on state-law questions.” Estelle v. McGuire, 28 502 U.S. 62, 67-68 (1991). The California Court of Appeal determined, under California legal 6 1 precedents, that the trial court did not abuse its discretion when it denied Llamas’s untimely 2 Faretta request. This decision, based on the court’s application of California case law, is not 3 reviewable in federal court. The Court of Appeal’s rejection of Llamas’s Faretta claim was not contrary to clearly 4 5 established Supreme Court precedent and is therefore entitled to AEDPA deference. Llamas’s 6 request for habeas relief on the basis of this claim is DENIED. 7 II. 8 9 INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS Llamas raises three claims of ineffective assistance of counsel. He asserts that his trial counsel was ineffective because he (i) failed to present evidence of the condition of his clothing and body at the time of his arrest, (ii) failed to object to inadmissible hearsay statements by 11 United States District Court Northern District of California 10 bystanders at the scene, and (iii) failed to object to prosecutorial misconduct during closing 12 arguments. 13 In order to prevail on an ineffectiveness of counsel claim, petitioner must establish two 14 things. See Strickland v. Washington, 466 U.S. 668, 687 (1984). First, he must establish that 15 counsel’s performance was deficient, i.e., that it fell below an “objective standard of 16 reasonableness” under prevailing professional norms. Strickland, 466 U.S. at 687-88. Second, he 17 must establish that he was prejudiced by counsel’s deficient performance, i.e., that “there is a 18 reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding 19 would have been different.” Id. at 694. 20 “Judicial scrutiny of counsel’s performance must be highly deferential” and “a court must 21 indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable 22 professional assistance.” See Strickland, 466 U.S. at 689; Sanders v. Ratelle, 21 F.3d 1446, 1456 23 (9th Cir. 1994). “There is a ‘strong presumption’ that counsel’s attention to certain issues to the 24 exclusion of others reflects trial tactics rather than ‘sheer neglect.’” Harrington v. Richter, 131 S. 25 Ct. 770, 790 (2011) (citations omitted). 26 A. 27 Llamas asserts that his trial counsel, Khan, provided ineffective assistance by failing to 28 Failure to Present Exculpatory Photographs present exculpatory photographs of Llamas’s clothing and body at trial. Llamas contends that his 7 1 counsel’s failure to present these exculpatory photos fell below an objective standard of 2 reasonableness and was prejudicial. Llamas raised this claim in his habeas petitions before the California Court of Appeal and 3 4 the California Supreme Court. The claim was summarily denied without discussion. “Where a 5 state court’s decision is unaccompanied by an explanation, the habeas petitioner’s burden still 6 must be met by showing there was no reasonable basis for the state court to deny relief.” See 7 Harrington v. Richter, 562 U.S. 86, 98 (2011). Llamas has not met this burden. 8 1. The Police Photographs Llamas asserts that police took photos of him and his clothing at the scene of the crime, 9 and that his attorney was inadequate by failing to acquire and present these photos at trial. Id. at 11 United States District Court Northern District of California 10 45. Llamas has failed to demonstrate that his attorney acted unreasonably by failing to acquire 12 and present the police photos. Llamas declares that shortly after he was detained, he was taken to a gas station near the 13 14 scene “where [his] hands and body and clothing were photographed by a police officer.” Pet. Ex. 15 B. ¶ 4. This account is supported by the police record in the case, which indicates that 16 “photographs were taken of Mr. Llamas” as the scene. Reporter’s Transcript (“RT”) at 338-340 17 (Dkt. No. 13-9). Llamas’s attorney took steps to acquire these photos. In his in limine motions submitted 18 19 before trial, Khan asked the court to order the prosecution to produce “all photographs, witness 20 statements, potentially exculpatory evidence, documents, witness names . . . and physical evidence 21 in advance of opening statement.” See Clerk’s Transcript Vol. 1 (“CT Vol. 1”) at 76 (Dkt. No. 13- 22 3). The trial court declined to specifically rule on the motion, noting that the prosecution was 23 already legally obligated to provide the requested information. See RT at 38-39. 1 However, the 24 court noted that the motion was a good reminder for the parties to comply with their disclosure 25 26 27 28 1 See also Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that the prosecution is required to produce any material evidence, favorable to the defendant, upon request); Cal. Penal Code § 1054.1 (under California law, a prosecuting attorney must produce all relevant evidence that is in the prosecutor’s custody, or which the prosecutor knows is in the custody of the investigating agencies to the defendant, or his attorney). 8 1 2 obligations. The prosecution never produced any photographs, possibly because there were no 3 photographs to produce. Khan declares that he was “never made aware that any photos of Mr. 4 Llamas actually existed.” Pet. Ex. A ¶ 5. At trial, Officer Garlit testified that he had not seen any 5 photographs of Llamas and had no personal knowledge that any photographs had actually been 6 taken. RT 338-340. Although Llamas declares that the police took photos of him, and the police 7 reports support this, he has never been able to confirm that the prosecution actually had 8 photographs of his clothing and hands taken at the scene. 9 Llamas asserts that Khan did not make a reasonable effort to acquire the police photos because he “did not take any steps to enforce the discovery order requiring that they be produced.” 11 United States District Court Northern District of California 10 Pet. at 49. This argument is not persuasive. As the trial court recognized, Khan’s in limine 12 request for the photos mirrored the disclosure obligations the prosecution already had. Because 13 the prosecution had an existing obligation to produce any relevant photographs, Khan reasonably 14 could have taken no steps to obtain the photos and simply relied on the prosecution to produce 15 them, as required by law. Despite this, Khan took the extra step of filing an in limine motion, 16 specifically requesting this evidence, and reminding the prosecution to comply with its disclosure 17 obligations. Llamas asserts that after Khan filed his in limine motion, he acted unreasonably by 18 failing to take additional steps to “enforce the discovery order.” But, as the record shows, there 19 was no discovery order; the prosecution was obligated by law, not court order, to produce any 20 relevant photos it had. And Khan took steps to enforce this existing legal obligation by filing the 21 in limine motion before trial. It is not clear what additional steps Khan could have taken to obtain 22 the photos beyond duplicating the legally superfluous request he had already made. 23 On this record, the California courts reasonably could have concluded that Khan’s efforts 24 to obtain the photos fell within the range of adequate legal assistance and that Khan’s performance 25 was not deficient. Llamas has failed to show there was no reasonable basis on which the 26 California courts could have denied this claim. 27 28 2. Photos Taken by Investigator A defense investigator went to the jail and photographed the clothing that Llamas was 9 1 wearing at the time of his arrest. Pet. Ex. A ¶ 5. Llamas argues that his trial counsel was 2 ineffective for failing to introduce these photographs at trial. But the record demonstrates that the 3 California courts could have reasonably concluded that Khan declined to introduce these 4 photographs for strategic reasons and that his decision was within the range of reasonable 5 performance. Khan acknowledges that his investigator took photographs of Llamas’s clothing at the 6 county jail and that these photographs show that Llamas did not have visible blood on his clothes 8 at the time he was arrested. Khan declares that he did not use the investigator to authenticate and 9 introduce the photos because he wanted to “exclude any evidence that Mr. Llamas was in custody 10 and because [the] investigator had no personal knowledge that those were in fact the clothes worn 11 United States District Court Northern District of California 7 by Mr. Llamas from the time of his arrest.” Pet. Ex. A ¶ 5. Khan also states that he cross- 12 examined the police witnesses to “confirm that Mr. Llamas did not have any blood on his person 13 or any marks on his hands consistent with his alleged beating of Mr. Martinez” and that he 14 believed this evidence “would be as probative as pictures of Mr. Llamas’ clothing.” Id. 15 Llamas argues that Khan’s tactical decision was patently unreasonable. He asserts that 16 Khan should not have withheld exculpatory evidence simply to avoid emphasizing that Llamas 17 was in prison because the jury was already aware that Llamas had been arrested and had been 18 instructed not to consider this in assessing guilt. He adds that Khan’s belief that the police 19 testimony would be comparable was unreasonable because “there is a vast and qualitative 20 difference between officers testifying that they did not recall seeing blood on petitioner’s clothing 21 . . . and introducing vivid photographs showing not a speck of blood on the bright white band of 22 material covering petitioner’s pants pockets and belt line.” Corrected Traverse at 15 (Dkt. No. 23 15). 24 Tactical decisions of trial counsel deserve deference when: (1) counsel in fact bases trial 25 conduct on strategic considerations; (2) counsel makes an informed decision based upon 26 investigation; and (3) the decision appears reasonable under the circumstances. See Sanders v. 27 Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994). “In evaluating the reasonableness of counsel’s 28 actions, a reviewing court must consider the circumstances at the time of counsel’s conduct, and 10 1 cannot second-guess counsel’s decisions or view them under the fabled twenty-twenty vision of 2 hindsight.” Edwards v. Lamarque, 475 F.3d 1121, 1127 (9th Cir. 2007). 3 The California courts reasonably could have concluded that Khan made a reasonable 4 tactical decision to not introduce the investigator photos. As Khan declares, he chose not to 5 introduce the investigator photos because (1) he did not want to present evidence emphasizing that 6 Llamas had been in custody; (2) his investigator would not be able to fully authenticate the photos; 7 and (3) he believed he could get comparable evidence regarding the absence of blood on Llamas’s 8 clothes by cross-examining the police witnesses. Pet. Ex. A ¶ 5. It is clear that Khan faced a trade-off with regard to the investigator photos: they had 10 exculpatory value in that they showed a lack of blood on Llamas’s clothes at the time of his arrest, 11 United States District Court Northern District of California 9 but they could also be prejudicial as they would remind the jurors that Llamas had been arrested 12 and booked in jail. Khan made a tactical decision to forgo introducing the photos and to instead 13 attempt to illicit similar evidence from the police officers on cross-examination, who could testify 14 that Llamas did not have blood on his clothes following the attack. Llamas now argues that Khan 15 weighed these issues incorrectly, made the wrong choice, and should have introduced the photos. 16 But he has failed to demonstrate that Khan’s decision was objectively unreasonable. The 17 California courts could have concluded that Khan made a reasonable tactical decision, based on 18 the circumstances of the case, when he decided not to introduce the investigator photos and to 19 instead illicit similar evidence by cross-examining the officers. This was within the wide range of 20 adequate legal assistance under Strickland. Llamas has failed to show there was no reasonable 21 basis on which the California courts could have denied this claim. 22 23 Llamas’s ineffective assistance claim based on his counsel’s failure to obtain and introduce exculpatory photos is DENIED. 24 B. 25 Llamas claims that his trial counsel was ineffective by failing to object when the Failure to Object to Hearsay Statements 26 prosecution elicited hearsay testimony from Officer Majors and Officer Garlit in reference to out- 27 of-court statements by bystanders. Pet. at 56. The last reasoned decision on this claim is the 28 Court of Appeal’s decision on direct appeal. I conclude that the Court of Appeal did not 11 1 2 3 unreasonably apply the Strickland standard in denying this claim. 1. Officer Majors’s Testimony Llamas argues that his trial counsel was ineffective because he failed to object to a series 4 of questions directed to Officer Majors in which she was asked whether she received any 5 information that Martinez was assaulted “by anyone other than the defendant.” The Court of 6 Appeal concluded that trial counsel had a reasonable tactical justification for not objecting because 7 an affirmative response from Majors would have been exculpatory for Llamas, and a negative 8 response would have meant that the questions did not call for hearsay. Id. at 16. The court’s 9 conclusion does not reflect an unreasonable application of the Strickland standard. 10 The relevant part of Officer Majors’s trial testimony was as follows: United States District Court Northern District of California 11 12 PROSECUTOR: As part of your investigation, did you ever investigate any allegation that Ms. Martinez was assaulted by a group of females? 13 OFFICER MAJORS: No. 14 PROSECUTOR: Did you ever get that information? 15 OFFICER MAJORS: No, nobody ever said anything like that. 16 PROSECUTOR: Did you get any information that Ms. Martinez was assaulted by anyone other than the defendant? 17 18 19 20 21 OFFICER MAJORS: No I didn’t. ... PROSECUTOR: Did you get any information that Ms. Martinez was assaulted by anyone other than the defendant? OFFICER MAJORS: No I did not. 22 PROSECUTOR: What about by a group of males, not including the defendant? 23 OFFICER MAJORS: No I did not. 24 RT at 266-268 25 As the Court of Appeal reasonably concluded, none of Officer Majors’ testimony was 26 impermissible hearsay. Officer Majors was asked multiple times whether she received any 27 information that a group of women or men, or some individual, “other than the defendant” 28 assaulted Ms. Martinez. She testified that “no” she did not receive any such information. Hearsay 12 1 is an out-of-court statement offered for the truth of the matter asserted. See Cal. Evid. Code § 2 1200(a). Testimony regarding the absence of a statement is not hearsay. 3 Llamas argues that Officer Majors’s testimony “clearly related to the content of statements made by witnesses at the scene” and emphasizes that she was asked multiple times whether she 5 received any information regarding whether “anyone other than the defendant” assaulted Martinez. 6 Pet. at 61. Llamas’s argument seems to be that by answering “no,” Majors was implicitly 7 testifying that she was told that Llamas assaulted Martinez and that this implicit statement is 8 hearsay. This argument is not persuasive. Because of the way the prosecutor’s questions were 9 formulated, a “no” answer from Majors did not mean that she had received information that 10 Llamas assaulted Martinez, only that she had not received information that anyone else had. 11 United States District Court Northern District of California 4 Majors was never asked if she received any information that Llamas had assaulted Martinez and 12 never testified that she did. Further, even if Martinez’s “no” answers implied that she had 13 received some information that Llamas assaulted Martinez, this “information” would not 14 necessarily be a statement; “information” could include other forms of evidence. Contrary to 15 Llamas’s assertion, the prosecution’s questions did not clearly relate to the “content of statements 16 made by witnesses at the scene” and Majors’s testimony was not hearsay. Trial counsel acted 17 reasonably by not making a hearsay objection to this testimony. The California Court of Appeal’s 18 conclusion that trial counsel’s performance was adequate was not an unreasonable application of 19 Strickland. 20 21 22 23 2. Officer Garlit’s Testimony Llamas argues that his trial counsel was ineffective by failing to object to hearsay statements elicited from Officer Garlit. As a preliminary issue, the parties dispute what state court decision is relevant for this 24 court’s AEDPA review: Llamas asserts that I should review the Court of Appeal’s decision on 25 direct appeal while Respondent asserts that I should review the California Supreme Court’s 26 summary denial. “When more than one state court has adjudicated a claim, we analyze the last 27 reasoned decision.” Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). In this case, the last 28 reasoned decision is the Court of Appeal’s decision on direct appeal. Although the Court of 13 1 Appeal and California Supreme Court also adjudicated and denied these claims, they did so in 2 summary denials, without any discussion. I will apply the AEDPA standard to the California 3 Court of Appeal’s decision on direct appeal. 4 The Court of Appeal concluded that Khan’s failure to object to certain questions during 5 Officer Garlit’s direct examination was objectively unreasonable, but that this error did not cause 6 any prejudice to Llamas given the strength of the other evidence presented at trial. The Court of 7 Appeal’s analysis does not demonstrate an unreasonable application of Strickland. 8 The relevant part of Officer Garlit’s trial testimony was as follows: 9 11 United States District Court Northern District of California 10 PROSECUTOR: When you had your conversation with Ms. Martinez, did she ever tell you that she was assaulted by a group of between four and six individuals? OFFICER GARLIT: No, sir. 12 PROSECUTOR: Did she ever tell you she was attacked by two to four girls? 13 14 15 OFFICER GARLIT: No, sir. ... 16 PROSECUTOR: During your conversation with Ms. Martinez, did you tell her that you had witnesses who said that she was hit in the face by the defendant? 17 OFFICER GARLIT: Yes, sir. 18 PROSECUTOR: And when you told her that, did she offer at that time that she had been assaulted actually by a group of people? 19 20 21 22 23 OFFICER GARLIT: No, she did not. PROSECUTOR: Just so I’m clear. I’m not asking – you are speaking with her in this interview and you tell her that you have witnesses that said that the defendant hit her in the face? OFFICER GARLIT: Yes. 24 PROSECUTOR: Okay. And when you told her that, did she appear to be responsive to the question, that she understood the statement? 25 OFFICER GARLIT: Yes. 26 27 PROSECUTOR: When you made that statement, did she in turn at that time say anything along the lines that actually I was assaulted by two to four women? 28 OFFICER GARLIT: No. 14 1 2 3 4 5 6 7 8 9 10 11 PROSECUTOR: Or did she say she was actually assaulted by maybe a group of people? OFFICER GARLIT: No. PROSECUTOR: Anything along those lines? OFFICER GARLIT: No. PROSECUTOR: During the course of your investigation, were you made aware that there were eyewitnesses that said she was assaulted by the defendant? OFFICER GARLIT: Yes, sir. PROSECUTOR: Was there any information given to you that she was actually assaulted or she may have been assaulted by a group of people? OFFICER GARLIT: No. United States District Court Northern District of California RT 323-324. 12 13 14 15 In addition, a recording of Garlit’s interview with Martinez was played. In the recording, Garlit tells Martinez that “a couple of witnesses saying that [Llamas] hit you in the face,” to which she replies “no idea.” RT 326, CT 221. First, although the Court of Appeal ultimately found Khan’s failure to bring a hearsay 16 objection based on these questions was unreasonable, there are several reasons why Khan could 17 have acted reasonably by failing to object to these questions on the basis of hearsay. 18 Many of the statements Llamas objects to were not hearsay because they were not offered 19 for the “truth of the matter asserted” but to show their effect on Ms. Martinez. At the preliminary 20 hearing, Martinez testified that Llamas did not attack her and that the police did not give her an 21 opportunity to explain that she was attacked by a group of girls, not Llamas. The prosecution 22 introduced testimony from Officer Garlit to undermine this account. Garlit testified that at the 23 scene he asked Martinez if she knew who had attacked her and she said she did not. Garlit then 24 pushed Martinez, telling her that he had witnesses saying that Llamas attacked her. If Llamas was 25 indeed misidentified and Martinez knew she had actually been attacked by a group of girls, her 26 expected response to this kind of statement would be to defend her boyfriend and inform Garlit 27 who the real attackers were. Martinez’s actual response of “no idea” and the fact that she did not 28 15 1 tell Garlit that she was attacked by a group of girls at the scene undermines her later statements 2 about what happened. In the context of this interview, Garlit’s statement that “a couple of 3 witnesses saying that [Llamas] hit you in the face” was not offered for its truth, but to demonstrate 4 that Garlit made this statement to Martinez and to show Martinez’s response. The statement 5 would be relevant and probative even if it was not true, since it has independent value by giving 6 context to Martinez’s reaction. 7 Out of court statements used to show the effect on a listener are not hearsay. See People v. 8 Ervine, 47 Cal. 4th 745, 775 (2009) (statements offered “to explain what the officer may have 9 done in response to this information” were not hearsay under California law). Because the statements regarding what Garlit told Martinez in the interview were offered to show their effect 11 United States District Court Northern District of California 10 on Ms. Martinez, and not for their independent truth, they were not hearsay. Khan could have had 12 a reasonable basis for not objecting on hearsay grounds to the statements made in the context of 13 Garlit’s interview with Martinez. 14 Llamas only objects to one other question and response. The prosecutor asked Garlit 15 “During the course of your investigation, were you made aware that there were eyewitnesses that 16 said she was assaulted by the defendant?” Garlit responded, “Yes, sir.” There is no apparent non- 17 hearsay purpose for this testimony. As the Court of Appeal concluded, there was no tactical 18 reason not to object to this question. The question is whether Khan’s failure to object to this 19 statement was prejudicial under Strickland. The Court of Appeal concluded that it was not given 20 the strength of the other evidence presented. 21 That decision and analysis does not demonstrate an unreasonable application of Strickland. 22 As the Court of Appeal pointed out, there was other strong evidence presented in this case that 23 Llamas was the attacker. An eyewitness, Thomas, testified at length about witnessing the attack 24 from approximately 20 yards away while he was outside with a group of friends. In addition, the 25 prosecution entered Martinez’s statement to paramedics that “my boyfriend attacked me.” This 26 evidence was only rebutted by Martinez’s later inconsistent statement that she was attacked by a 27 group of girls. 28 Llamas claims that the evidence that he was the attacker was “weak” because there was 16 1 only one eyewitness, the assault took place at night, and the eyewitness had been drinking. As just 2 discussed, there were two eyewitnesses, Thomas and Martinez, and Martinez was unlikely to 3 misidentify her own boyfriend. Further, although the assault took place at night, Thomas testified 4 that he and his friends spoke to Llamas up close, that Llamas identified Martinez as his girlfriend, 5 and that, just a few minutes later, he witnessed Llamas assault Martinez from 20 yards away. 6 Thomas’s testimony indicates that, even though it was dark, he was able to observe Llamas up 7 close, specifically knew that Llamas was Martinez’s boyfriend, and was close by when the assault 8 took place. Although Thomas testified that he had been drinking that night, he also testified that 9 he had not had anything to drink for over an hour and was not heavily impaired at the time of the assault. The Court of Appeal’s conclusion that the evidence regarding identity was strong was not 11 United States District Court Northern District of California 10 unreasonable. 12 Garlit’s testimony that he was “made aware that there were eyewitnesses that said 13 [Martinez] was assaulted by [Llamas]” adds little to the evidence otherwise presented. The jury 14 was already aware that there was at least one eyewitness who had identified Llamas, as they had 15 heard Thomas’s testimony and account of the attack. Garlit’s testimony, indicating that at least 16 one other person confirmed this story, offers only minor additional support for Thomas’s first- 17 hand account. Further, the jury had heard testimony from Thomas that he was with his friends 18 when he saw the attack and the officers and paramedic testified that there were a number of people 19 at the scene when they responded. The jury was therefore aware that Thomas did not witness this 20 attack alone. They were also aware that none of these bystanders identified another assailant as 21 the attacker. With this information, the jury could have reasonably inferred or guessed that at least 22 one other person confirmed Thomas’s story to the police. Garlit’s statement, making this explicit, 23 adds relatively little. 24 The state appellate court’s conclusion that Khan’s failure to object to the Garlit testimony 25 was not prejudicial was reasonable. In the face of Thomas’s eyewitness testimony and Martinez’s 26 own statement to the paramedic, it is not reasonably probable that Garlit’s statement that he was 27 made aware of “witnesses” identifying Llamas as the attacker changed the outcome at trial. 28 The California Court of Appeal’s rejection of Llamas’s claim that his trial counsel was ineffective 17 1 for failing to object to hearsay evidence was reasonable and is therefore entitled to AEDPA 2 deference. This claim is DENIED. 3 C. 4 Llamas argues that trial counsel was ineffective for failing to object to four instances of Failure to Object to Prosecutorial Misconduct 5 prosecutorial misconduct during closing arguments. He identifies (1) the prosecutor’s reference to 6 Llamas’s failure to “accept the responsibility of his actions,” (2) the prosecutor’s urging that the 7 jurors not to be “part of the tragedy of Ms. Martinez,” (3) the prosecutor’s implication that 8 Martinez did not appear at trial because she knew Llamas was guilty, and (4) the prosecutor’s 9 claim that defense counsel had made a “blatant misrepresentation” of the jury’s duty. Llamas raised these claims on direct appeal as both prosecutorial misconduct claims and ineffective 11 United States District Court Northern District of California 10 assistance claims. The Court of Appeal rejected each of these claims on direct appeal, and that 12 decision is the last reasoned decision to address these claims. The Court of Appeal’s decision 13 does not reflect an unreasonable application of clearly established federal law. 14 1. Failure to Take Responsibility 15 Llamas asserts that his trial counsel was ineffective for failing to bring an adequate 16 objection to the prosecutor’s statement in closing argument that “because [Llamas] would not be 17 man enough to accept the responsibility of his actions, we would have to go through this exercise 18 of who was the person who did it.” Llamas asserts that this statement constituted prosecutorial 19 misconduct because it criticized Llamas for exercising his Sixth Amendment right to trial. 20 Llamas’s trial counsel did object to this statement, but Llamas asserts that his counsel was 21 deficient because he did not bring a more substantial objection identifying the statement as 22 misconduct and did not seek an admonition. 23 On direct appeal, petitioner brought this claim as both a prosecutorial misconduct claim 24 and as an ineffective assistance claim. In rejecting it, the court did not directly address whether 25 counsel’s conduct was deficient under Strickland but noted that counsel had objected to this claim 26 and preserved it for appeal. Pet. Ex. D. at 20. The court acknowledged that counsel did not 27 request an admonition, but found this conduct excusable because, given that the objection had 28 already been overruled, the request for an admonition would likely be futile. Id. Upon concluding 18 1 that the prosecutorial misconduct claim was preserved for appeal, the court went on to consider 2 whether the misconduct was prejudicial under the standard for prosecutorial misconduct and 3 concluded that “beyond a reasonable doubt the error complained of did not contribute to the 4 verdict.” Id. at 20-21. 5 Llamas now argues that the Court of Appeal’s prejudice analysis was unreasonable. But 6 its analysis was part of petitioner’s prosecutorial misconduct claim, not his ineffective assistance 7 claim. Because petitioner did not raise his prosecutorial misconduct claim here, I cannot review 8 the Court of Appeal’s analysis of it. 9 The Court of Appeal did not reach a clear decision on the ineffective assistance claim, but implicitly rejected it. This decision was reasonable. The Court of Appeal’s discussion indicates 11 United States District Court Northern District of California 10 that the court concluded that trial counsel’s performance was not deficient. The court noted that 12 trial counsel properly objected to the prosecutor’s statement but that the objection was overruled. 13 It then concluded that counsel’s failure to seek an admonition was excusable because the request 14 likely would have been futile. Given this analysis, it appears that the Court of Appeal concluded 15 that trial counsel’s conduct was not deficient with regard to this statement. Trial counsel could 16 have had a tactical reason for not making an additional objection or seeking an admonition after 17 his first objection was overruled. A subsequent objection would likely have been overruled and 18 might have played poorly with the jury. Further, he had already objected sufficiently to preserve 19 the claim for appeal. This decision was not unreasonable. 20 The Court of Appeal’s implicit rejection of this ineffective assistance claim does not 21 demonstrate an unreasonable application of Strickland. The court could have had a reasonable 22 basis for concluding that trial counsel’s performance was not objectively unreasonable. 23 24 2. The Tragedy of Ms. Martinez Llamas argues that his trial counsel was ineffective for failing to object to the prosecutor’s 25 comments, urging the jury not to be part of the “tragedy” of Ms. Martinez. He asserts that this 26 statement amounted to prosecutorial misconduct because the prosecutor was attempting to arouse 27 the passions and prejudices of the jury, that his counsel had no reasonable basis for not objecting, 28 and that the error was prejudicial. 19 1 On direct appeal, the Court of Appeal concluded that, because Khan had not objected to 2 this statement, he had not preserved the misconduct claim for appeal and Llamas could only 3 prevail if he could show that Khan’s performance was ineffective under Strickland. Pet. Ex. D at 4 21. Although the court concluded that the statement was “arguably improper” it rejected Llamas’s 5 ineffective assistance claim, concluding that Khan could have had a tactical reason for not 6 objecting, and that regardless, the failure to object was not prejudicial. Id. at 22. 7 The Court of Appeal’s rejection of this claim does not demonstrate an unreasonable 8 application of Strickland. As the court noted, counsel could have had a tactical reason for not 9 objecting to the statement, such as not wanting to highlight it. Further, as Khan explained in his declaration, he may have also believed that the objection would have been overruled and futile 11 United States District Court Northern District of California 10 since, in his experience, judges rarely sustain objections to argument during closings. This belief 12 would have been supported by the fact that the judge had overruled Khan’s earlier objection to the 13 prosecutor’s comment about Llamas failing to take responsibility for his actions. Finally, as Khan 14 also declares, his general strategy was to address the prosecutor’s comments in his own closing, 15 rather than to object. See People v. Kelly, 1 Cal. 4th 495, 520 (1992) (“Generally, failure to object 16 is a matter of trial tactics as to which we will not exercise judicial hindsight.”); United States v. 17 Necoechea, 986 F.2d 1273, 1281 (9th Cir. 1993) (“Because many lawyers refrain from objecting 18 during opening statement and closing argument, absent egregious misstatements, the failure to 19 object during closing argument and opening statement is within the ‘wide range’ of permissible 20 professional legal conduct.”). 21 The Court of Appeal reasonably concluded that counsel’s decision not to object was a trial 22 tactic, and not objectively deficient performance. The Court of Appeal’s decision was not an 23 unreasonable application of Strickland. 24 25 26 27 3. The Implication that Ms. Martinez did not appear because she knew the petitioner was guilty Llamas argues that his trial counsel was ineffective for failing to object to the prosecutor’s statement that “even Stephanie Martinez knows who assaulted her. That’s why she’s not here.” Pet. 64. He asserts that this statement amounted to prosecutorial misconduct because “It is 28 20 1 misconduct [for a prosecutor] to suggest to the jury, in arguing the veracity of a witness, that the 2 prosecutor has information undisclosed to the trier of fact bearing on the issue of credibility, 3 veracity or guilt.” People v. Padilla, 11 Cal. 4th 891, 946 (1995). The California Court of Appeal rejected this claim, concluding that the prosecutor’s 5 statement was not misconduct and was a “fair comment.” As it explained, “[t]hat Martinez chose 6 not to attend the trial despite being ordered to do so because she did not want to risk incriminating 7 her cohabitant who was the father of her child was a reasonable inference to be drawn from the 8 evidence presented to the jury, and the trial counsel was not deficient for not objecting.” Pet. Ex. 9 D at 23. The Court of Appeal’s conclusion that trial counsel was not deficient was reasonable. 10 As the Court of Appeal concluded, the jury was presented with evidence from which it 11 United States District Court Northern District of California 4 could have drawn the reasonable inference that Martinez did not appear to testify because she 12 believed Llamas was guilty. This evidence included: her spontaneous declaration to the paramedic 13 identifying Llamas as the attacker; she only testified that she was attacked by a group of girls after 14 the fact; she was in a romantic relationship with Llamas, was living with him, and was pregnant 15 with his child; and, she did not appear for trial to testify, despite being ordered to appear by the 16 court. From this evidence they could have drawn the inference that Martinez believed Llamas was 17 the attacker, that she did not want to testify against him, and that she did not appear in court so she 18 would not have to testify. 19 Llamas argues that the prosecutor’s comment suggested that he had information 20 concerning “why she failed to appear” that was not presented to the jury. Although it is 21 misconduct for a prosecutor to suggest that he has information not disclosed to the trier of fact that 22 is relevant to a witness’s credibility, veracity, or guilt, the prosecutor’s statement here does not 23 suggest that he had any additional information regarding the reason for Martinez’s absence. 24 Llamas suggest that the prosecutor implied that he knew that Martinez’s absence was willful, but a 25 reasonable jury would know that the prosecutor, just like the members of the jury, can only guess 26 as to any individual’s state of mind or motivation based on the facts before them. This case is not 27 like those Llamas cites in which the attorneys made insinuations about facts that were not in 28 evidence, rather than inferences based on the evidence presented. See People v. Perez, 58 Cal. 2d 21 1 229, 240-241 (1962) (suggestion that witness testified a particular way because he had been 2 threatened was improper); People v. Woods, 146 Cal. App. 4th 106, 113 (2006) (suggestion that 3 witness was credible because no evidence was presented that he had a disciplinary record was 4 improper). Here, the prosecutor did not insinuate that he had any additional facts relevant to 5 Martinez’s absence and a reasonable jury would have understood that he was merely inferring the 6 reason for Martinez’s absence based on the same facts presented at trial. Llamas has failed to 7 demonstrate that the prosecutor’s statement regarding the reason for Martinez’s absence was 8 misconduct. The Court of Appeal reasonably concluded that the prosecutor’s statement regarding 10 Martinez’s absence was not misconduct and that, as a result, trial counsel reasonably did not 11 United States District Court Northern District of California 9 object to it. The Court of Appeal’s conclusion that trial counsel’s performance was not deficient 12 under Strickland was not unreasonable. 13 14 15 16 4. Prosecutor’s comment that defense counsel made a “blatant misrepresentation” of law Llamas argues that his trial counsel was ineffective for failing to object to the prosecutor’s claim that Khan had made a “blatant misrepresentation” of the law in his own closing arguments. The Court of Appeal rejected this claim, concluding that the prosecutor’s statement was improper 17 but that Khan may have had a tactical reason for not objecting, such as wanting to avoid the 18 appearance of a petty squabble. It also found that the statement was not prejudicial. The Court of 19 20 Appeal’s decision was not an unreasonable application of Strickland. Llamas laments that this conclusion was unreasonable because Khan’s declaration 21 demonstrates that he does not remember why he did not object to this statement. Since Khan does 22 not remember why he did not object, the Court of Appeal acted reasonably by guessing why he 23 24 25 26 27 might have reasonably chosen to stay silent and its conclusion is not inconsistent with Khan’s declaration. Llamas contends that, even if this was Khan’s rationale for not objecting, it was not reasonable because “[c]hoosing not to object when the prosecutor repeatedly engaged in misconduct during closing argument to ‘avoid the appearance of a petty squabble’ is not a rational tactical decision.” Pet. At 83. But Llamas does not cite to any case law in support of this 28 22 1 argument. As many cases recognize, it is common and usually reasonable for an attorney to 2 refrain from making objections during closing arguments. See United States v. Necoechea, 986 3 F.2d 1273, 1281 (9th Cir. 1993). Further, it is generally improper for reviewing courts to second- 4 guess trial counsel’s tactics regarding when to make objections since, “in the heat of a trial, 5 defense counsel is best able to determine proper tactics in the light of the jury’s apparent reaction 6 to the proceedings.” People v. Frierson, 53 Cal. 3d 730, 749 (1991). The Court of Appeal 7 reasonably concluded that Khan could have had a legitimate tactical reason for not objecting to the 8 prosecutor’s statement and was not deficient. The Court of Appeal’s decision does not reflect an 9 unreasonable application of Strickland. The Court of Appeal reasonably rejected Llamas’s claim that his trial counsel was 11 United States District Court Northern District of California 10 ineffective for failing to object to prosecutorial misconduct during closing arguments. The court’s 12 conclusion that trial counsel was not ineffective was not an unreasonable application of Strickland 13 This analysis is entitled AEDPA deference and Llamas’s habeas claim is DENIED. 14 III. COERCION OF DEADLOCKED JURY Llamas raises one claim of instructional error. He claims the trial court’s “Allen charge”2 15 16 to the deadlocked jury was impermissible because it was unduly coercive. Pet. at 16–17. The 17 facts were summarized by the state appellate court as follows: 18 At about 4:45 p.m. [, after deliberating for just over a day], the court learned that the jury was still having difficulty reaching a verdict and discussed the matter on the record. The court thanked the jury for its efforts and noted “a lot of resources and a lot of your time have been put into this so far.” The court also inquired regarding the split of jurors and the foreperson informed him they were split nine to three, without disclosing which side was which. The court instructed the jurors to think about the case and expressed hope that they would be able to reach a verdict after “a good night’s sleep . . . or a good breakfast.” The court then stated, “at some point hopefully you will reach a verdict, but if you don’t, then at that point we’ll take it from there.” Once the court released the jury for the day, defense counsel objected to the court’s treatment of the jury deadlock, arguing that the court should have asked the jurors whether there was a reasonable possibility that the jury could reach a verdict before ordering them to continue deliberating. The jury continued deliberating the next morning and reached a 19 20 21 22 23 24 25 26 27 28 2 An “Allen charge” is a jury instruction that intends to prevent a hung jury and is typically given after the jury is deadlocked. United States v. Wills, 88 F.3d 704, 716-17 (9th Cir. 1996). 23 1 2 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 verdict after lunch, finding the defendant guilty. Pet., Ex. D at 7. The Court of Appeal rejected this claim, holding, after an extensive review of the facts and the issues, that there was “no abuse of discretion and no coercion of the jury to reach a verdict.” Id. at 27. It determined that the trial court’s inquiry into the numerical division of votes was permissible because the court did not ask how many votes were on each side, id. at 26; held that the court’s language urging all jurors to take a “fresh look” at the case and “hop[ing]” they would reach a verdict was not coercive, id.; emphasized that the trial court did not separately encourage jurors in the minority to reconsider their position and actually reminded the jurors that they did not have to reach an agreement, id. at 27; and noted that, while the court referenced the resources that had been put into the case, it did not discuss the “ ‘expense and inconvenience of a retrial’ to encourage a verdict,” id. “Any criminal defendant . . . being tried by a jury is entitled to the uncoerced verdict of that body.” Lowenfield v. Phelps, 484 U.S. 231, 241 (1988). The Supreme Court precedent regarding what makes an Allen charge coercive is relatively sparse, but suggests that a court must consider the instruction “in its context and under all circumstances” in assessing its coercive impact. Lowenfield, 484 U.S. at 237. Given the minimal relevant precedent on this issue, and the deference required under AEDPA, a federal court assessing a coercive Allen instruction claim under AEDPA asks only two questions: “(1) if the California Court of Appeal looked at the totality of the circumstances in determining whether the instruction given at [the defendant’s] trial was coercive and (2) if its determination that it was not was objectively reasonable.” Parker v. Small, 665 F.3d 1143, 1148 (9th Cir. 2011). “As long as the California Court of Appeal reviewed all the facts and considered the supplemental charge in its context and under all the circumstances in holding that it was not coercive, then, in the absence of Supreme Court authority to the contrary, this Court must give deference to the California Court of Appeal’s judgment.” Id. The Court of Appeal’s discussion demonstrates that it reviewed the trial court’s supplemental charge in context and looked at the totality of the circumstances as required by Lowenfield to determine whether the instruction was coercive. Llamas asserts that the Court of 24 1 Appeal’s determination is clearly contrary to Lowenfield, in which the Supreme Court found that a 2 similar supplemental charge was not coercive. See Lowenfield, 484 U.S. at 237. He argues that 3 the supplemental charge offered in this case had a number of allegedly coercive qualities that were 4 not present in Lowenfield and that, as a result, the Court of Appeal should have found the 5 instruction coercive. While Llamas has identified factors that distinguish the instruction in this 6 case from the one in Lowenfield, at most this demonstrates that his coercive instruction claim is 7 not clearly barred by Lowenfield. It does not demonstrate that the Court of Appeal’s decision was 8 contrary to Lowenfield or any other clearly established Supreme Court precedent. The Court of 9 Appeal’s analysis is not in conflict with clearly established federal law. The state appellate court’s rejection of this claim was reasonable and is therefore entitled to 10 United States District Court Northern District of California 11 AEDPA deference. This claim is DENIED. 12 IV. 13 CUMULATIVE PREJUDICE Llamas asserts that even if none of the errors he has identified were sufficiently prejudicial 14 to warrant habeas relief on their own, the cumulative effect of these errors caused him sufficient 15 prejudice to warrant relief. Pet. at 98. 16 In some cases, although no single trial error is sufficiently prejudicial to warrant reversal, 17 the cumulative effect of several errors may still prejudice a defendant so much that his conviction 18 must be overturned. See Alcala v. Woodford, 334 F.3d 862, 893-95 (9th Cir. 2003) (reversing 19 conviction where multiple constitutional errors hindered defendant’s efforts to challenge every 20 important element of proof offered by the prosecution). Generally, a cumulative error claim is 21 successful only when the cumulative errors share some critical thread or symmetry so that, in 22 conjunction, they amplify each other in effect. See Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 23 2007) (state court unreasonably rejected cumulative error claim where all of the improperly 24 excluded evidence supported the only contested issue raised by the defense, and thus, in 25 combination, undermined the defense); Ybarra v. McDaniel, 656 F.3d 984, 1001 (9th Cir. 2001) 26 (reversal was unwarranted where errors were unrelated and did not have a “synergistic effect”). 27 The Court of Appeal reasonably concluded that there was no cumulative prejudice based 28 25 1 on the errors it identified in petitioner’s trial. 3 In its discussion, the Court of Appeal determined 2 that there were some errors in Llamas’s trial, including trial counsel’s failure to object to Officer 3 Garlit’s testimony and, potentially, trial counsel’s failure to object to certain comments during 4 closing arguments. The Court of Appeal held that, despite these errors, there was no prejudice, 5 cumulative or otherwise, because the eyewitness testimony from Thomas and Martinez’s 6 spontaneous declaration were strong evidence that Llamas was the attacker. The Court of Appeal’s analysis does not reflect an unreasonable application of federal law. 7 8 The errors that the Court of Appeal identified do not share a critical thread. One related to the 9 failure to object to hearsay evidence of identity; one related to the failure to object to the prosecutor’s potentially improper statements playing to the jury’s passions; and one related to the 11 United States District Court Northern District of California 10 failure to object to the prosecutor’s disparaging remarks about defense counsel. These potential 12 errors are unrelated and do not have any synergistic prejudicial effect in combination. The Court 13 of Appeal’s rejection of this claim does not demonstrate an unreasonable application of clearly 14 established federal law and is entitled to AEDPA deference. This claim is DENIED. 15 CONCLUSION 16 The state courts’ adjudication of Llamas’s claims did not result in decisions that were 17 contrary to, or involved an unreasonable application of, clearly established federal law, nor did 18 19 20 21 22 23 24 25 26 27 28 3 The cumulative prejudice claim Llamas brought on direct appeal was not identical to the one he raises now because his direct appeal claim did not include his ineffective assistance claim regarding exculpatory photographs. The Court of Appeal therefore did not consider whether trial counsel’s failure to introduce the photographs of petitioner’s clothes had any prejudicial effect or contributed to a cumulatively prejudicial effect when it denied this claim on direct appeal. Petitioner then brought cumulative prejudice claims in the habeas petitions he filed in the Court of Appeal and California Supreme Court. These petitions included the exculpatory photographs claim, but excluded his Faretta claim. The result is that no state court reviewed the precise combination of claims that petitioner raises here to assess their cumulative prejudice. Because the only reasoned decision on petitioner’s various cumulative prejudice claims is the Court of Appeal’s decision on direct appeal, I will review that decision here. Although there is no clear case law on this issue, because the Court of Appeal did not consider the impact of petitioner’s exculpatory photographs claim in denying the cumulative prejudice claim I cannot reasonably consider the possible effect of the exculpatory photographs claim in assessing whether the Court of Appeal’s decision was unreasonable. I must assess the Court of Appeal’s decision based on the claims it actually reviewed. Nevertheless, if the Court of Appeal had reviewed the exculpatory photograph claim on direct appeal, the claim likely would have had no impact on the cumulative prejudice analysis as the court could have reasonably concluded that trial counsel was not deficient in failing to introduce the photographs at issue. 26 1 they result in decisions that were based on an unreasonable determination of facts in light of the 2 evidence presented in the state court proceeding. Accordingly, the petition is DENIED. 3 A certificate of appealability will not issue. Reasonable jurists would not “find the district 4 court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 5 473, 484 (2000). Llamas may seek a certificate of appealability from the Ninth Circuit. 6 The Clerk shall enter judgment in favor of respondent and close the file. 7 8 IT IS SO ORDERED. Dated: August 31, 2017 9 10 William H. Orrick United States District Judge United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 27

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