Hunter v. Kernan
Filing
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ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS. Signed by Judge Charles R. Breyer on 11/29/2018. (crblc1, COURT STAFF) (Filed on 11/29/2018)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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DARRELL HUNTER,
Petitioner,
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United States District Court
Northern District of California
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ORDER DENYING PETITION FOR
A WRIT OF HABEAS CORPUS
v.
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Case No. CV-18-2627-CRB
SCOTT KERNAN,
Director, California Department
of Corrections,
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Respondent.
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Petitioner, a state prisoner incarcerated at the San Francisco County Jail, seeks a
writ of habeas corpus under 28 U.S.C. § 2254 invalidating a conviction from San
Francisco County Superior Court. In an order filed on July 9, 2018, this Court found that
the petition appears to state cognizable claims for relief under § 2254, when liberally
construed, and ordered Respondent to show cause why a writ of habeas corpus should not
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be granted. Respondent has filed an answer to the order to show cause (dkt. 23) and
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Petitioner has filed a traverse (dkt. 24).
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BACKGROUND
A.
Statement of the Case
On July 12, 2014, Petitioner was charged by information with making a criminal
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threat. He entered a plea of not guilty. Pet. (dkt. 1) Ex. C at 2. Trial commenced on
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September 2, 2014. Id. On September 3 and 4, the prosecution presented one witness and
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the defense presented two, one of whom was Petitioner’s former girlfriend. Id. During
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cross-examination of Petitioner’s former girlfriend, Petitioner asked to use the rest room
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and then waived his appearance for the remainder of the cross-examination.1 Id.
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Petitioner was present for the testimony of the second defense witness, after which the
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parties stated that there were no further witnesses, and the jury was dismissed for the
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weekend. Id. Petitioner waived his right to be present as the court and counsel reviewed
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jury instructions, and he left for the weekend with instructions to return at 9:15 a.m. on
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September 8. Id.
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At 10 a.m. on September 8, the trial court told counsel that Petitioner had not yet
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appeared, that there was “some indication he’s on his way,” and that the court would not
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delay further. Id. At 10:15 a.m., the court admonished the jury that they were not to
speculate about Petitioner’s absence or consider it for any purpose, then proceeded with
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Northern District of California
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instructions and counsels’ closing arguments. Id. With Petitioner still absent at the end of
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the morning session, the court ordered bail forfeited and a bench warrant issued. Id.
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Petitioner was not present after the lunch break and the court proceeded with the remaining
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closing arguments and, at 2:42 p.m., sent the jury to begin deliberations. Id.
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After the jury departed, defense counsel moved for a mistrial based on alleged
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prosecutorial misconduct in the prosecutor’s rebuttal argument. Id. Ex. C at 3. As the
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court began to respond, Petitioner—having returned at some point that is not documented
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in the record—interjected and the following exchange occurred:
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“[Petitioner]: Why you all keep playing with me? Especially
you. You just stand up, my boy.
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“[Defense counsel]: Calm down. You’re crazy. You better
back off.
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“[Petitioner]: You piece of shit. You’re a piece of shit. That’s
what you are.
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“[Defense counsel]: You need to calm down.
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The conclusion that Petitioner waived his appearance is based on the California
Court of Appeal’s statement of the case. People v. Hunter, No. A144413, 2018 WL
360089, at *13–14 (Cal. Ct. App. Jan 11, 2018), reh’g denied (Feb. 1, 2018), review
denied (Apr. 11, 2018). The Petitioner’s memorandum did not include the trial court’s
transcript. Therefore, the Court relies on the California Court of Appeal’s recitation of the
facts.
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“[Petitioner]: You need to understand what you are.
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“The Court: Mr. Hunter, why don’t we have you step outside
and calm down just a little bit, and then we can talk.
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“[Petitioner]: Think I don’t know what you about, bitch.”
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Id.
The court subsequently denied the mistrial motion. Id. Just over an hour later, the
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jury returned its verdict, finding Petitioner guilty of making a criminal threat. Id. A few
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minutes after the jurors were discharged, the court went back on the record, explaining that
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one of the jurors had expressed concern about the possibility of having contact with
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appellant due to a past experience of encountering and being threatened by a different
defendant in a case for which she had been a juror. Id. The court and counsel questioned
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the juror, who stated that her past experience had not affected her deliberations. Id.
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Two days later, on September 10, 2014, Petitioner was arrested on the bench
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warrant the court previously issued when he failed to appear for trial on September 8. Id.
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Due to his conduct during his arrest on September 10, Petitioner was charged with making
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threats to an executive officer and misdemeanor resisting arrest. Id. Ex. C at 3–4. On
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September 11, defense counsel declared a doubt as to Petitioner’s competence based on his
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behavior and statements during trial. Id. Ex. C at 4. At that point, proceedings were
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suspended, Dr. Jonathan French was appointed to evaluate Petitioner, and the case was
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continued. Id.
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Dr. French evaluated Petitioner on October 12, 2014 and filed his report on October
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15, 2014, finding that Petitioner was presently incompetent but noting that it was a close
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case and that the court might wish to obtain a second opinion. Id.
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After Dr. French’s evaluation, Petitioner requested a Marsden hearing, at which
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Petitioner’s counsel was relieved. Id. Ex. A at 3. On October 20, 2014, attorney Cheryl
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Rich was appointed to represent petitioner. Id. Ex. C at 4. The case was continued for a
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second competency evaluation by Dr. Lisa Jeko. Id. Dr. Jeko evaluated appellant on
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November 15, 2014 and found him competent. Id.
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On December 3, 2014, the court found Petitioner competent and reinstated criminal
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proceedings. Id.
On January 21, 2015, Petitioner filed a motion for a new trial, arguing that a hearing
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was required to determine whether (1) Petitioner was competent during the trial; (2)
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Petitioner’s absence from court was due to mental illness; (3) trial counsel was ineffective;
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(4) a juror was improperly influenced by a prior jury experience; and (5) there was
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insufficient evidence appellant made a criminal threat. Id.
On February 5, 2015, the court denied the motion for a new trial. Id. The court
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sentenced Petitioner to three years in state prison, suspended execution of the sentence,
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placed Petitioner on supervised probation for five years, ordered him to serve 217 days in
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county jail with credit for having served those 217 days, and ordered him to complete all
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services required as directed by the probation department. Id.
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On February 24, 2015, Petitioner timely filed a direct appeal. Id. Ex. C at 5. He
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raised four grounds: (1) his Federal and California constitutional rights to due process and
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a fair trial were violated when the Superior Court did not suspend the trial and conduct a
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competency examination, and his trial attorney was ineffective for failing to request the
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competency examination; (2) his Federal and California constitutional rights to due
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process and a fair trial were violated when the Superior Court denied his motion for a new
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trial due to his incompetence during the trial; (3) his Federal and California constitutional
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rights to due process and a fair trial were violated when the Superior Court continued the
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trial in his absence; and (4) his Federal and California constitutional rights to due process
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and a fair trial were violated because of juror misconduct during the trial. Id. at 4–5.
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On February 24, 2016, Petitioner filed a petition for writ of habeas corpus in the
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superior court. Id. at 5. The petition claimed that Petitioner had been denied effective
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assistance of counsel because his trial attorney did not investigate and present a defense
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based on his mental state at the time of the Department of Motor Vehicle (“DMV”)
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incident. Id.
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On April 1, 2016, the superior court denied the petition, finding that trial counsel
had tactical reasons for not pursuing a mental state defense. Id.
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On July 19, 2017, Petitioner filed a petition for writ of habeas corpus in the
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California Court of Appeal. Id. On January 11, 2018, the California Court of Appeal
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issued a joint written opinion denying both Petitioner’s appeal and his habeas corpus
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petition on the merits. Id. Ex. C at 1.
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On February 13, 2018, Petitioner filed a petition for review with the California
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Supreme Court of both the denial of his direct appeal and the denial of his petition for
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habeas corpus. Id. at 5.
On April 11, 2018, the California Supreme Court summarily denied review of both
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Petitioner’s direct appeal and his California habeas petition. Id.
B.
Statement of the Facts
United States District Court
Northern District of California
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The California Court of Appeal summarized the facts of the case as follows:
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In June 2014, Carrie Stanton was working as a manager at the
DMV on Fell Street in San Francisco. One of the employees
she was responsible for overseeing, Terina Hampton, was
appellant’s former girlfriend. Hampton, appearing very
nervous and agitated, asked Stanton what had happened a
couple of weeks before, when appellant came in and asked for
Hampton. Stanton replied that he had asked where Hampton
was and, when Stanton said she was not there, asked when she
would be back; pursuant to the department’s policy, Stanton
said she could not give him that information and appellant said,
“‘Okay, Ms. Carrie,’” and left. Hampton said that appellant
was “obsessed” with Stanton, angry at her and threatening that
he was going to “come and get me,” calling her “dyke,
bitches.” Hampton asked for time off to get a restraining order.
Stanton took the threat toward her as “information” and a
“warning” and did not think she needed to do anything about it
at that time because appellant had never been aggressive
toward her; she was more concerned for Hampton’s safety.
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A few days later, about 9:50 a.m. on June 10, 2014, Stanton
was working at window 17 at the DMV, making a telephone
call for a customer. She heard a commotion and saw appellant
walking in, loudly calling her name and using obscenities. She
heard him say, “‘Where is that bitch Carrie Stanton? Where is
the fucking office manager Carrie Stanton? That fucking
lesbian bitch, dyke, bitch, mother-fucking black bitch, where is
she? I’m here to carry out martial law. She’s been investigated
and convicted and this is her last fucking day. This will be her
last day. She won’t see tomorrow.’” Appellant appeared “angry
and aggressive,” “walking rapidly, swinging his arms, looking
around the office.” He made eye contact with Stanton, and she
called 911. Stanton felt “very threatened” and felt appellant
was “there to do [her] harm”; she was scared because it
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appeared appellant was “carrying out” the threat Hampton had
told her about.
The 911 operator could hear appellant yelling in the
background and told Stanton to stay on the phone. As she did
so, Stanton saw Hampton trying to calm appellant down. With
the assistance of a guard, Hampton was able to get appellant to
go outside, still yelling obscenities and trying to turn in
Stanton’s direction. Seconds after he left, however, appellant
returned, again yelling, screaming Stanton’s name and calling
her “all kinds of names.” He came closer to Stanton than he
had been before. Hampton came back and as she tried to stop
appellant, he “swatt[ed] her away,” saying “‘[y]ou’re
assaulting me.’” He picked up an ATM keypad and threw it at
Stanton, then threw a fingerprint machine at her. Stanton
guessed that the ATM keypad weighed about three to four
pounds and the fingerprint machine about 12 to 15 pounds.
Appellant then left again, with the aid of a guard. Throughout
the incident, appellant repeatedly yelled the same sorts of
things she initially described, that Stanton was a “dyke bitch”
and a “fake Christian,” he was there to “carry out martial law”
and “fucking eliminate” Stanton, and that this was her “last
fucking day.”
The police did not respond to the 911 call, so Stanton later
called the California Highway Patrol to report the incident and
find out why there had been no response.
Hampton, testifying as a witness for the defense, did not recall
what appellant was yelling when he first came into the DMV
on June 10. She described appellant yelling at Stanton but the
only specific thing she was sure of was that he called Stanton
“‘Fake Christian bitches’”; he yelled other things as well but
she did not pay attention to everything he was yelling because
“[h]e was ranting.” She did not hear him threaten anyone, but
she acknowledged that she did not hear everything he said and
that he could have made a threat she did not hear. She saw him
throw an ATM machine or a fingerprint machine against the
wall.
Hampton testified that prior to June 10, she gave Stanton and
the administrative manager a “head’s up” that appellant might
be “having another episode” and might come in. She denied
ever telling Stanton that appellant had threatened her. She
asked Stanton what kind of exchange she had had with
appellant because he seemed so focused on Stanton and she did
not know why; he kept talking about the incident when he
asked when Hampton would be back and Stanton said she
could not give him this information. In talking with Stanton,
she did not use the word “obsessed” but could have said
“focused” or “bent”; “[i]t’s like he was obsessed.” She told
Stanton that appellant had come into her home uninvited, “tore
up” and made a mess in her apartment, and that she was
concerned “because of his mental state, and he kept coming up
to the job—to my job trying to see me.”
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Pedro Bohorquez, who was also working at the DMV on June
10 and did not know appellant, testified that he saw a person
walking around, yelling and saying “too many bad words,”
“profanity” and mentioning a single name, the office manager
Stanton. On cross-examination, Bohorquez testified that in the
nine years he had worked at the DMV, he had never been so
scared, and that he did not hear everything the person said.
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People v. Hunter, No. A144413, 2018 WL 360089, at *3–4 (Cal. Ct. App.
Jan 11, 2018), reh’g denied (Feb. 1, 2018), review denied (Apr. 11, 2018).
DISCUSSION
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A.
Standard of Review
This court may entertain a petition for a writ of habeas corpus “in behalf of a person
in custody pursuant to the judgment of a State court only on the ground that he is in
custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
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§ 2254(a).
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The writ may not be granted with respect to any claim that was adjudicated on the
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merits in state court unless the state court’s adjudication of the claim: “(1) resulted in a
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decision that was contrary to, or involved an unreasonable application of, clearly
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established Federal law, as determined by the Supreme Court of the United States; or (2)
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resulted in a decision that was based on an unreasonable determination of the facts in light
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of the evidence presented in the State court proceeding.” Id. § 2254(d).
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“Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state
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court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question
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of law or if the state court decides a case differently than [the] Court has on a set of
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materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412–13 (2000).
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“Under the ‘reasonable application clause,’ a federal habeas court may grant the writ if the
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state court identifies the correct governing legal principle from [the] Court’s decisions but
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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 the court
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concludes in its independent judgment that the relevant state-court decision applied clearly
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established federal law erroneously or incorrectly. Rather, that application must also be
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unreasonable.” Id. at 411. A federal habeas court making the “unreasonable application”
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inquiry should ask whether the state court’s application of clearly established federal law
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was “objectively unreasonable.” Id. at 409.
The only definitive source of clearly established federal law under 28 U.S.C. §
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2254(d) is in the holdings (as opposed to the dicta) of the Supreme Court as of the time of
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the state court decision. Id. at 412; Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003).
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While circuit law may be “persuasive authority” for purposes of determining whether a
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state court decision is an unreasonable application of Supreme Court precedent, only the
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Supreme Court’s holdings are binding on the state courts and only those holdings need be
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“reasonably” applied. Id.
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B.
Claims
United States District Court
Northern District of California
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Petitioner asserts multiple claims for relief, including several violations of his rights
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to due process and a fair trial under the Fifth and Fourteenth Amendments. Petitioner also
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alleges the violation of his right to effective assistance of counsel under the Sixth
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Amendment.
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1.
Rights to due process and a fair trial
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Petitioner raises four claims for relief based on denial of his rights to due process
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and a fair trial: (1) that the trial court erred in failing to suspend proceedings and conduct a
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competency examination during the trial, (2) that the trial court erred in denying his
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motion for new trial based on incompetence at trial, (3) that the trial court erred in failing
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to suspend proceedings and hold a hearing to determine if Petitioner’s absence was
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voluntary, and (4) that a juror committed misconduct by failing to disclose certain
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information during voir dire.
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a. Trial court’s failure to suspend proceedings and conduct a
competency hearing after Petitioner’s conduct on September 8, 2014
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Petitioner argues that the trial court erred in not suspending proceedings and
conducting a competency examination after Petitioner’s outburst in court on September 8,
2014, because the outburst, considered in light of earlier incidents, clearly showed that
Petitioner was incompetent. Pet. at 10.
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It is well-established that due process requires that a criminal defendant not be tried
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unless he is competent to stand trial. Godinez v. Moran, 509 U.S. 389, 396 (1993). A
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defendant is competent to stand trial if he has sufficient present ability to consult with his
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lawyer with a reasonable degree of rational understanding and has a rational as well as
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factual understanding of the proceedings against him. Id.
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Due process requires a trial court to order a psychiatric evaluation or conduct a
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competency hearing sua sponte if the court has a good faith doubt concerning the
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defendant’s competence. Pate v. Robinson, 383 U.S. 375, 385 (1966). A good faith doubt
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about a defendant’s competence arises if “‘a reasonable judge, situated as was the trial
court judge whose failure to conduct an evidentiary hearing is being reviewed, should have
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experienced doubt with respect to competency to stand trial.’” Maxwell v. Roe, 606 F.3d
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561, 568 (9th Cir. 2010) (quoting Kaplany v. Enomoto, 540 F.2d 975, 983 (9th Cir. 1976)
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(en banc)).
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“In reviewing whether a state trial judge should have conducted a competency
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hearing, we may consider only the evidence that was before the trial judge.” McMurtrey v.
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Ryan, 539 F.3d 1112, 1119 (9th Cir. 2008); Amaya-Ruiz v. Stewart, 121 F. 3d 486, 489
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(9th Cir. 1997); United States v. Lewis, 991 F.2d 524, 527 (9th Cir. 1993). Several factors
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are relevant to determining whether a hearing is necessary, including evidence of a
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defendant’s irrational behavior, his demeanor at trial, and any prior medical opinion on
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competence to stand trial. Drope v. Missouri, 420 U.S. 162, 180 (1975).
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The California Court of Appeal determined that it was reasonable for the trial court
to not suspend proceedings and conduct a competency hearing. The court explained:
Appellant argues that the nature of the charged offense raised a
suspicion he was suffering from a mental illness, noting that by
the time of the September 8 outburst, the court had heard
testimony about appellant’s “bizarre behavior” at the DMV
office and Hampton’s testimony that she was concerned about
appellant’s mental state in June 2014. Additionally, appellant
points to his statements at the preliminary hearing that
Hampton was being “brainwashed” by Stanton and that “hell
awaited non-believers” as raising a suspicion of incompetence.
He argues that his inability to watch Hampton testify and his
unexplained failure to appear for the morning session on
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September 8 indicated he was beginning to suffer a psychotic
breakdown due to the stress of trial, and that his outburst when
he did appear on September 8, in which he called his attorney
“boy” and the judge a “bitch” was evidence he was in the midst
of a psychotic breakdown. Appellant comments that his
attorney had “good reason” for calling him “crazy” during the
outburst.
Appellant argues his case is similar to People v. Murdoch
(2011) 194 Cal.App.4th 230, 237, in that it involved more than
“mere bizarre statements or actions taken in isolation.” There,
two doctors previously appointed to examine the defendant’s
competence previously had found he suffered from a serious
mental illness and was competent at that time due to
medication he had been given, but that he had since refused to
take the medication and could decompensate and become
incompetent if he continued to refuse it. (Id. at p. 233.) The
defendant later successfully moved to represent himself, told
the court his defense to the charges of felony assault was that
the victim was not a human being and on cross-examination
asked the victim only one question—“Can you shrug your
shoulders like this?” According to the defendant, the victim
lacked shoulder blades, which are “‘symbolic of angelic
beings.’” (Ibid.) The Murdoch court concluded that the
defendant’s statements, together with the experts’ reports,
provided substantial evidence demonstrating a reasonable
doubt as to whether the defendant had “decompensated and
become incompetent as the experts had warned.” (Id. at p.
238.)
In the present case, there was no prior competency hearing and
no expert warning that appellant suffered from a serious mental
illness, was competent only due to medication and was likely
to decompensate because he had stopped taking medication.
Nor did any of the statements or behavior appellant points to
indicate a lack of a “‘present ability to consult with his lawyer
with a reasonable degree of rational understanding’” or lack of
a “‘rational’” and “‘factual understanding’” of the proceedings.
(Sattiewhite, supra, 59 Cal.4th at p. 464.)
Appellant’s behavior at the DMV certainly demonstrated
extreme emotion and anger, but this is not necessarily an
indication he suffered from a mental illness affecting his
“ability to understand the trial proceedings or to assist or
cooperate with counsel.” (Lewis, supra, 43 Cal.4th 415, 525.)
In denying appellant’s motion for new trial, the trial court
detailed its reasons for concluding, based on its observations at
trial, that while appellant was at times angry, agitated and
upset, “there was never any indication he was incompetent to
stand trial.” As the court noted, a person can suffer from a
mental disorder but remain able to understand the proceedings
and assist in his or her defense. (See People v. Welch (1999)
20 Cal.4th 701, 742, overruled on another ground in People v.
Blakeley (2000) 23 Cal.4th 82, 90, [more needed to raise doubt
than “‘psychiatric testimony that defendant is immature,
dangerous, psychopathic, or homicidal or such diagnosis with
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little reference to defendant’s ability to assist in his own
defense’”]; People v. Laudermilk (1967) 67 Cal.2d 272, 285.)
The court stated that appellant was “very engaged with his
attorney,” “very engaged in his jury selection process,” “clear
about what was going on in the proceedings” and “aware of
every aspect of the trial,” and that he “followed my
instructions,” “was clear enough to ask me when he needed to
leave the room or he needed a break,” and “would get upset but
then he would calm down and he comported himself.” Given
the trial court’s observations, it is clear that the facts of
appellant’s offense did not provide substantial evidence of
incompetence. Hampton’s reference to having had a concern
about appellant’s mental state prior to the offense was similarly
insufficient, as were appellant’s statements at the preliminary
hearing.
Nor do we have a basis for rejecting the trial court’s conclusion
on the basis of appellant’s inability to watch Hampton testify.
A defendant’s preference to absent himself from a portion of
trial is not necessarily indicative of incompetence. (People v.
Davis (1995) 10 Cal.4th 463, 526 & fn. 23 [defendant
explained decision not to be present in the courtroom as
attempt to “avoid problems” because it was so difficult to sit
“listening to lies about me” with a straight face].) The trial
court here specifically addressed this point in its comments
after the new trial motion: “There’s no question that there were
times during the trial when [appellant] was agitated. He was
upset. He had difficulty particularly hearing his former
girlfriend testify. That was hard on him, and he did ask to be
excused for a short time, but he came right back.” The court
then continued with its observations about appellant being
“very engaged” in the trial, as indicated above. In short, the
trial court was aware that appellant was having an emotional
reaction to the testimony but saw no indication he was unable
to understand the proceedings and assist in his defense. The
record does not suggest appellant’s response to Hampton’s
testimony was indicative of incompetence. Appellant
interrupted the testimony, saying “I gotta use the rest room. I
gotta use the restroom. Continue.” The court told him they
would wait for him to return and appellant responded, “Yes,
ma’am. Thank you.” After a brief break in which the court
conferred with counsel, when the court told appellant it
understood he wanted to waive his appearance for the
remainder of Hampton’s testimony and asked if this was
correct, appellant replied affirmatively, and when the court
instructed appellant not to go too far so there would be no
delay when the witness was done testifying, he replied,
“Okay.”
Appellant’s failure to appear in court on the morning of
September 8 and outburst when he did appear were also
insufficient to constitute evidence of incompetence as a matter
of law. The trial court commented upon these points as well:
“Now, there’s no question that at the end, after the jury had
begun their deliberations, that [appellant] started to absent
himself a little bit more. He was harder to get into court; and at
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one point, he didn’t appear though he had been ordered to. And
he was quite agitated and upset particularly with his attorney
when he came back. [¶] Did that mean he was incompetent at
times? There was absolutely nothing in his behavior to indicate
to this court—and frankly to [defense counsel] because he
certainly didn’t declare a doubt at that point—to indicate that
[appellant] was not able to assist in his defense, that he was not
competent. [¶] Was he in mental distress? Could be. He was
clearly angry. He was clearly upset. Whether or not that—did
he seem to the extent that he was so out of control or having a
mental breakdown? No, absolutely not.” The record thus
indicates that appellant exhibited anger, agitation, perhaps a
lack of impulse control in this last outburst. But none of this
rose to the level of a “‘showing of “incompetence” that is
“substantial” as a matter of law’” (Sattiewhite, supra, 59
Cal.4th at p. 465, quoting Mai, supra, 57 Cal.4th at p. 1033) so
as to justify us in rejecting the trial court’s considered
evaluation of appellant’s conduct at trial.
Hunter, No. A144413, 2018 WL 360089, at *5–7.
The California Court of Appeal reasonably determined that the trial court was not
12
constitutionally required to hold a competency hearing mid-trial. When considering a
13
claim that a state trial court should have held a competency hearing, a federal habeas court
14
considers only the information that was before the state trial court. See Amaya-Ruiz, 121
15
F.3d at 489. Moreover, a state trial court’s finding that a competency hearing was not
16
required is entitled to a presumption of correctness. See 28 U.S.C. § 2254(e)(1); Maggio
17
v. Fulford, 462 U.S. 111, 117 (1983) (per curiam).
18
Courts have found sufficient evidence of incompetence in two scenarios: (1) where
19
the defendant has a history of severe mental illness, and (2) where the defendant’s
20
behavior is extremely irrational and erratic throughout the trial. See Odle v. Woodford,
21
238 F.3d 1084, 1087–89 (9th Cir. 2001) (sufficient evidence of incompetence found where
22
defendant had a massive temporal lobe lobectomy followed by severe personality change
23
and series of psychiatric hospitalizations and attempted suicide while in jail); Tillery v.
24
Eyman, 492 F.2d 1056, 1057–58 (9th Cir. 1974) (sufficient evidence of incompetence
25
found where defendant displayed erratic and irrational behavior throughout the course of
26
the trial, including screaming, laughing at the jury, disrobing in the courtroom, and butting
27
his head through a glass window).
28
In the instant case, as the state court noted, Petitioner’s behavior at the DMV and in
12
1
court demonstrated extreme emotion and anger, but was not so bizarre as to suggest that he
2
was unable to understand the basic functions of the trial process and assist in his defense.
3
Nor did the trial court have access to any documentation of severe mental illness like the
4
court did in Odle, see Odle, 238 F.3d at 1087–89. Cf. People v. Murdoch,194 Cal.App.4th
5
230, 237 (2011) (finding that a competency hearing was warranted where two doctors
6
previously concluded that defendant was seriously mentally ill and defendant engaged in
7
bizarre behavior). Petitioner relies on expert evaluations conducted after the trial to argue
8
that the trial court’s failure to hold a competency hearing was unreasonable, Pet. at 16–17,
9
but this Court may only consider the evidence that was actually before the trial judge. See
Odle, 238 F.3d at 1087. Petitioner points to defense counsel calling Petitioner “crazy”
11
United States District Court
Northern District of California
10
after the outburst on September 8, 2014, Pet. at 16, but that spontaneous reaction, in the
12
jury’s absence, is not a psychiatric evaluation. Given the information available to the trial
13
court on September 8, 2014, it was reasonable for the California Court of Appeal to
14
conclude that a competency hearing was unnecessary.
15
b. Trial court’s denial of Petitioner’s motion for a new trial
16
Petitioner argues that his rights to due process and a fair trial were violated when
17
the trial court denied Petitioner’s motion for a new trial based on his incompetence during
18
trial. Pet. at 18. Petitioner also argues that the that the reports authored by the two clinical
19
psychologists who examined him shortly after the trial, combined with his behavior before
20
and during trial, triggered a need for a full competency hearing during trial. Id.
21
The California Court of Appeal noted that the difference between the information
22
available to the trial court when it denied the motion for a new trial compared to when it
23
decided against holding a competency hearing was the addition of the two medical reports
24
by Dr. French and Dr. Jeko. Pet. Ex. C at 19. The California Court of Appeal reasoned
25
that the presence of the reports did not compel a different outcome “because neither
26
addressed [Petitioner’s] competence during the trial.” Id. (emphasis in original). The
27
California Court of Appeal distinguished the present case from those, cited by Petitioner,
28
in which the defendant’s competence was evaluated with respect to upcoming proceedings:
13
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
Here, the psychologists evaluated appellant’s competence at
the time of the evaluations, but the relevant question was
appellant’s competence during the trial that had previously
concluded. The reports did not address this question and
therefore did not constitute substantial evidence that appellant
was incompetent during trial.
United States v. Mason (4th Cir. 1995) 52 F.3d 1286, which
appellant views as similar to his case, differs in the same
critical respect. The defendant in Mason was convicted in the
first phase of trial and, while released pending the second
(forfeiture) phase the next day, attempted suicide. (Id. at p.
1287.) After a psychological evaluation concluded the
defendant was suffering from a mental disease or defect
requiring care and treatment, the district court held a hearing to
determine his competence to proceed with the forfeiture phase
and sentencing but denied motions for new trial based on
alleged incompetence during the first phase of trial and for a
hearing to determine competence at the first phase. Finding the
district court abused its discretion, the Mason court noted that
the psychological report indicated the defendant’s mood
disturbances had existed for up to two years and he had had
severe alcohol abuse problems for the past few years, and,
according to the affidavits of counsel, the defendant’s treating
physicians believed he was incompetent during the first phase
of trial. (Id. at pp. 1290-1293.) Thus, while Mason was like the
present case in that it involved a motion for a retrospective
competency hearing, the medical opinions in that case directly
addressed the issue of competency at the time of the prior trial
proceedings while the reports here addressed competency at
the time of the evaluation without discussing competency at the
past trial.
Appellant assumes that the evidence of his mental condition on
September 10, described in Dr. French’s report, established
that he was incompetent on September 8. As the trial court
recognized, however, French’s report “relate[d] back” only to
the time appellant came into custody on the bench warrant and
defense counsel declared a doubt.
Hunter, No. A144413, 2018 WL 360089, at *11.
Petitioner’s motion for a new trial turned on whether Petitioner was incompetent
22
during trial. The California Court of Appeal found that the only new information available
23
to the trial court when it considered the motion were the two medical reports authored by
24
Dr. French and Dr. Jeko. See id. But the reports offered contrary conclusions, and neither
25
discussed Petitioner’s competence during trial. See id. at 10.
26
This Court has already agreed with the California Court of Appeal’s conclusion that
27
Petitioner’s behavior at trial did not raise a substantial doubt as to his competence as a
28
14
1
matter of law. See supra Part B(1)(c). Because federal habeas review is limited to whether
2
the state court decision was contrary to clear and convincing evidence, Miller-El v.
3
Cockrell, 537 U.S. 322, 340 (2003); Gonzalez v. Pliler, 341 F.3d 897, 903 (9th Cir. 2003)
4
(citing 28 U.S.C. § 2254(e)(1)), the present question is thus whether the two additional
5
reports compelled the conclusion that Petitioner was incompetent during trial. They did
6
not. Two opposing medical conclusions cannot be interpreted as constituting clear and
7
convincing evidence.
8
Moreover, neither report augmented the information regarding Petitioner’s
9
competence at trial because a determination of present incompetence does not necessarily
evince that the defendant was incompetent prior to that determination. See People v.
11
United States District Court
Northern District of California
10
Smith, 110 Cal.App.4th 492, 497, 505 (2003). Here, Dr. French and Dr. Jeko evaluated
12
Petitioner one and two months, respectively, after the trial. See Hunter, No. A144413,
13
2018 WL 360089, at *2. It was reasonable for the California Court of Appeal to defer to
14
the trial court’s determination that a new trial was not warranted because the two after-the-
15
fact reports did not constitute clear and convincing evidence of Petitioner’s incompetence
16
at trial nor did they attempt to opine as to his mental state at trial.
17
18
c. Trial court’s proceeding without determining if Petitioner’s absence
was voluntary
Petitioner argues that the trial court erred in commencing proceedings on the
19
morning of September 8, 2014, without determining whether his absence was voluntary,
20
and in continuing the afternoon session after appellant left the courtroom following his
21
outburst at defense counsel and the trial court. Pet. at 20. Petitioner further contends that
22
this error was not harmless. Id. at 21
23
The Supreme Court has recognized that “the right to personal presence at all critical
24
stages of the trial . . . [is a] fundamental right[] of each criminal defendant.” Rushen v.
25
Spain, 464 U.S. 114, 117 (1983). This right derives from the Confrontation Clause of the
26
Sixth Amendment and the Due Process Clauses of the Fifth and Fourteenth Amendments.
27
Campbell v. Wood, 18 F.3d 662, 671 (9th Cir. 1994) (en banc). The Confrontation Clause
28
15
1
protects a defendant’s right to face his accusers and applies to every stage of a trial. See
2
Illinois v. Allen, 397 U.S. 337, 338 (1970). The constitutional right to due process further
3
protects a defendant’s right to be present “at any stage of the criminal proceeding that is
4
critical to its outcome if his presence would contribute to the fairness of the procedure.”
5
Kentucky v. Stincer, 482 U.S. 730, 745 (1987).
A defendant can waive the right to personal presence if he does so voluntarily,
6
7
knowingly, and intelligently. Campbell v. Wood, 18 F.3d 662, 671 (9th Cir. 1994) (en
8
banc). Such a waiver need not be express; it may be implied, e.g., by a showing that the
9
defendant “knowingly and voluntarily fail[ed] to appear for trial.” United States v.
Houtchens, 926 F.2d 824, 827 (9th Cir. 1991). A defendant must personally waive his
11
United States District Court
Northern District of California
10
right to be present; that counsel is notified is irrelevant. See Turner v. Marshall, 63 F.3d
12
807, 815 (9th Cir. 1995), overruled on other grounds by Tolbert v. Page, 182 F.3d 677, 685
13
(9th Cir. 1999) (en banc).
The right to be present at all critical stages of trial, like most constitutional rights, is
14
15
subject to harmless error analysis “‘unless the deprivation, by its very nature, cannot be
16
harmless.’” Campbell v. Rice, 408 F.3d 1166, 1172 (9th Cir. 2005) (en banc) (quoting
17
Rushden v. Spain, 464 U.S. 114, 117 n.2 (1983) (per curiam)). For example, a court
18
refused to apply harmless error analysis where a defendant was absent during sentencing
19
because the absence so undermined the integrity of the trial process. See Hays v. Arave,
20
977 F.2d 475, 479–81 (9th Cir. 1992). However, an en banc panel overturned a Ninth
21
Circuit panel’s holding that it was structural error for a capital defendant to be absent when
22
the jury delivered the verdict. Rice v. Wood, 77 F.3d 1138, 1140–44 (9th Cir. 1996) (en
23
banc).
24
Although it is a close question, it was reasonable for the California Court of Appeal
25
to conclude that Petitioner’s absences were voluntary, based on an implied waiver. See
26
Houtchens, 926 F.2d at 827. Prior to September 8, 2014, Petitioner expressly waived his
27
presence twice. Pet. Ex. C at 2. Further, when Petitioner expressly waived his right to be
28
present for the trial court’s discussion of jury instructions with counsel, Petitioner “clearly
16
1
indicated his understanding of the court’s instruction to return at 9:15 a.m. on . . .
2
September 8.” Id. at 24. Petitioner argues that it was unreasonable to conclude that his
3
absence was voluntary, because the trial court knew that Petitioner had a history of mental
4
illness due to Petitioner’s former girlfriend’s testimony and Petitioner’s agitation during
5
that same testimony. Pet. at 20–21. However, it is reasonable to conclude that the trial
6
court was unaware of any history of mental illness, because Petitioner’s former girlfriend
7
never described Petitioner as suffering from mental illness, and the court interpreted
8
appellant’s reaction to his former girlfriend’s testimony as the result of strong emotion. Id.
9
at 25.
10
Petitioner later submitted, in January 2015, a declaration stating that his absence
United States District Court
Northern District of California
11
was due to a mental breakdown, id. at 25, but this post hoc explanation is not sufficient to
12
find that the California Court of Appeal was unreasonable. The trial court had observed
13
Petitioner voluntarily absenting himself during witness testimony and deliberations over
14
jury instructions in addition to his outburst on September 8, and saw no reason to question
15
his competence. See id. at 26. Indeed, the trial court’s subsequent comments in denying
16
the motion for a new trial reveal that the court viewed Petitioner’s actions as a function of
17
emotion, rather than incompetence. See id. at 24–25. It was thus reasonable for the
18
California Court of Appeal, when reviewing this record, to find that the trial court could
19
reasonably conclude that petitioner’s absence was voluntary.
20
21
22
d. Juror’s failure to disclose information about her prior jury experience
Petitioner argues that his rights to due process and a fair trial were violated by a
juror’s failure to disclose “material information” regarding past jury service. Pet. at 22.
23
The Sixth Amendment guarantees a criminal defendant a fair trial by a panel of
24
impartial jurors. U.S. Const. amend. VI; see Irvin v. Dowd, 366 U.S. 717, 722 (1961).
25
“Even if only one juror is unduly biased or prejudiced, the defendant is denied his
26
constitutional right to an impartial jury.” Tinsley v. Borg, 895 F.2d 520, 523–24 (9th Cir.
27
1990) (internal quotation marks omitted). However, the Constitution “does not require a
28
new trial every time a juror has been placed in a potentially compromising situation.”
17
1
Smith v. Phillips, 455 U.S. 209, 217 (1982). “The safeguards of juror impartiality, such as
2
voir dire and protective instructions from the trial judge, are not infallible; it is virtually
3
impossible to shield jurors from every contact or influence that might theoretically affect
4
their vote.” Id. (emphasis in original). Due process only means “a jury capable and
5
willing to decide the case solely on the evidence before it,” and a trial judge “watchful to
6
prevent prejudicial occurrences and to determine the effect of such occurrences when they
7
happen.” Id.
8
A petitioner may obtain a new trial because a juror failed to answer a voir dire
9
question correctly by showing: (1) that the juror failed to answer honestly a voir dire
question, and (2) that this undermined the impartiality of the petitioner’s jury. Dyer v.
11
United States District Court
Northern District of California
10
Calderon, 151 F.3d 970, 973 (9th Cir. 1998) (en banc).
12
During voir dire, Juror No. 6 disclosed that she had served as a juror in a criminal
13
trial over 30 years before and that the jury had reached a verdict. Pet. at 24. When later
14
asked by the trial court if any juror thought that he or she could not uphold the important
15
constitutional principles at issue in a trial, including the presumption of innocence, Juror
16
No. 6 did not raise her hand. Id. Juror No. 6 was selected as a juror and returned a verdict
17
of guilty along with the other jurors. A few minutes after the jury was discharged, the trial
18
court went back on the record to explain that one of the jurors expressed feeling nervous
19
about the possibility of having contact with Petitioner in the future. Id. The juror was
20
concerned that she not be identified. Id. Juror No. 6 then revealed that she had previously
21
served on a jury in a homicide case “in which the defendant lived very close to her and
22
they would run into each other in the neighborhood because he was released on bail.”
23
Hunter, No. A144413, 2018 WL 360089, at *16. Juror No. 6 stated that she had not shared
24
that information with any other jurors, focused only on the evidence presented and not on
25
her prior experience, and that when she heard the nature of the present case during jury
26
selection, her prior experience was not a concern for her. Id.
27
28
Petitioner contends that the record shows that Juror No. 6 committed misconduct
when she failed to raise her hand when asked by the trial court if she thought she could not
18
1
uphold the important constitutional principles at issue in a trial, including the presumption
2
of innocence. Pet. at 24. The California Court of Appeal rejected Petitioner’s argument,
3
finding that there was no evidence of nondisclosure in the face of specific questioning and
4
that the trial court found the juror credible when she stated that she had not been concerned
5
about her past experience when she heard the nature of the present case during voir dire.
6
Hunter, No. A144413, 2018 WL 360089, at *18.
7
It was reasonable for the California Court of Appeal to conclude that Juror No. 6
8
did not fail to disclose information in response to a voir dire question because she was not
9
asked about her post-trial experiences with the defendant in the prior case. A lay juror’s
failure to reveal information in response to an arguably ambiguous question does not
11
United States District Court
Northern District of California
10
constitute intentional concealment warranting a new trial. See McDonough Power Equip.,
12
Inc. v. Greenwood, 464 U.S. 548, 552 n.3, 555 (1984) (finding no intentional concealment
13
when a juror asked whether any family members had sustained severe injury that resulted
14
in “disability or prolonged pain and suffering,” did not disclose that his son had broken his
15
leg as a result of an exploding tire, due to his “mistaken though honest” belief that the
16
accident was not serious); Fields v. Brown, 503 F.3d 755, 767 (9th Cir. 2007) (en banc)
17
(finding no intentional concealment when a juror, asked whether any family members had
18
been crime victims, stated that his wife had been “assaulted and beaten,” but did not
19
expressly say she had been raped, because he assumed parties would understand “assault”
20
encompassed a sexual assault). During voir dire, Juror No. 6 was asked whether she had
21
prior jury experience, whether that jury returned a verdict, and whether she was the
22
foreperson. Hunter, No. A144413, 2018 WL 360089, at *16. Juror No. 6 answered those
23
questions and was not asked any additional questions about her prior jury service. Id. It
24
was reasonable for the California Court of Appeal to find that Juror No. 6 did not
25
intentionally conceal information because the questioning was not sufficiently specific to
26
elicit additional information regarding her prior jury service.
27
28
Moreover, it was reasonable for the California Court of Appeal to accept the trial
court’s factual finding that the juror was credible when she stated that she was not biased
19
1
by her prior jury experience because a trial court’s factual finding is presumed correct
2
under § 2254(e)(1) unless, unlike here, it has been rebutted by clear and convincing
3
evidence. Credibility findings are particularly insulated from review because “only the
4
trial judge can be aware of the variations in demeanor and tone of voice that bear so
5
heavily on the listener’s understanding of and belief in what is said.” Anderson v.
6
Bessemer City, 470 U.S. 564, 575 (1985). Accordingly, it was reasonable for the
7
California Court of Appeal to find that Juror No. 6 did not engage in misconduct or
8
nondisclosure and reject Petitioner’s allegations.
9
10
2.
Ineffective Assistance of Counsel at Trial
Petitioner raises two claims for relief based on ineffective assistance of counsel at
United States District Court
Northern District of California
11
trial: (a) trial counsel’s failure to move for a mistrial and declare a doubt as to Petitioner’s
12
competency and (b) trial counsel’s failure to investigate and present a diminished actuality
13
defense at trial. Pet. at 26.
14
A claim of ineffective assistance of counsel is cognizable as a claim of denial of the
15
Sixth Amendment right to counsel which guarantees not only assistance, but effective
16
assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). A meritorious
17
claim for ineffective assistance lies where counsel’s conduct so undermined the proper
18
functioning of the adversarial process that the trial cannot be relied upon as having
19
produced a just result. Id.
20
To meet Strickland’s first prong, a petitioner must show that counsel’s performance
21
was deficient; that counsel made errors so serious that counsel was not functioning as the
22
“counsel” guaranteed by the Sixth Amendment. Id. at 687. To do this, a petitioner must
23
show that counsel’s representation fell below an objective standard of reasonableness. Id.
24
at 688. The relevant inquiry is not what defense counsel could have done, but rather
25
whether the choices made by defense counsel were reasonable. See Babbitt v. Calderon,
26
151 F.3d 1170, 1173 (9th Cir. 1998). Judicial scrutiny of a counsel’s performance is
27
highly deferential; “a court must indulge a strong presumption that counsel’s conduct falls
28
within the wide range of reasonable professional assistance; that is, the [petitioner] must
20
1
overcome the presumption that, under the circumstances, the challenged action ‘might be
2
considered sound trial strategy.’” Strickland, 466 U.S. at 689 (citation omitted). The
3
purpose of the Sixth Amendment’s effective assistance guarantee is not to improve the
4
quality of legal representation, but simply to ensure that criminal defendants receive a fair
5
trial. Id.
6
Strickland’s second prong requires a petitioner to show that counsel’s errors were so
7
serious as to deprive the defendant of a fair trial, in which the result is reliable. Strickland,
8
466 U.S. at 688. To show prejudice, a petitioner must demonstrate that there is a
9
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different; a reasonable probability is a probability sufficient
11
United States District Court
Northern District of California
10
to undermine confidence in the outcome. Id. at 694. Where a petitioner is challenging his
12
conviction, the appropriate question is “‘whether there is a reasonable probability that,
13
absent the errors, the fact finder would have had a reasonable doubt respecting guilt.’”
14
Luna v. Cambra, 306 F.3d 954, 961 (9th Cir. 2002) (quoting Strickland, 466 U.S. 695).
15
When analyzing ineffective assistance of counsel claims under § 2254(d), a federal
16
habeas court employs a doubly deferential standard. Cullen v. Pinholster, 563 U.S. 170,
17
189–90 (2011); Knowles v. Mirzayance, 556 U.S. 111, 112 (2009). For a federal habeas
18
court reviewing a state court’s determination, the pivotal question is not whether defense
19
counsel’s performance fell below the Strickland standard, but whether the state court’s
20
application of the Strickland standard to that performance was reasonable. Harrington v.
21
Richter, 562 U.S. 86, 100–01 (2011).
22
23
a. Trial counsel’s failure to declare a doubt as to Petitioner’s competence
Petitioner claims that his trial counsel was ineffective for failing to move for a
24
mistrial and declare a doubt as to Petitioner’s competency. Pet. at 26. Petitioner’s claim
25
fails because he has not shown that trial counsel’s failure to declare a doubt as to
26
Petitioner’s competency was unreasonable, or that he was prejudiced by it.
27
28
To succeed under the first prong of the Strickland ineffective assistance of counsel
standard, Petitioner must show that his trial counsel’s performance was deficient.
21
1
Petitioner has not shown that counsel’s conduct fell outside of the wide range of
2
reasonable professional assistance. See Strickland, 466 U.S. at 689. As previously
3
discussed, there was not substantial evidence that Petitioner was incompetent on
4
September 8. See Hunter, No. A144413, 2018 WL 360089, at *5–7. This is substantiated
5
by the trial court’s subsequent statement that “[t]here was absolutely nothing in his
6
behavior to indicate . . . that [Petitioner] was not able to assist in his defense, that he was
7
not competent,” including on September 8, when he was “clearly angry,” “clearly upset,”
8
and maybe “in mental distress,” but “absolutely not” “to the extent that he was so out of
9
control or having a mental breakdown.” Id. at 7. The trial court’s observations show that
even if trial counsel had declared a doubt as to appellant’s competence on September 8, the
11
United States District Court
Northern District of California
10
trial court would not have suspended proceedings because the trial judge did not believe
12
Petitioner was incompetent. Under the circumstances, it is reasonable that an attorney in
13
Petitioner’s trial counsel’s position would believe that declaring a doubt would prove
14
fruitless.
15
Moreover, substantial deference is owed to trial counsel’s decision not to declare a
16
doubt as to Petitioner’s competency, because “defense counsel will often have the best-
17
informed view of the defendant’s ability to participate in his defense.” Medina v.
18
California, 505 U.S. 437, 450 (1992); accord Boyde v. Brown, 404 F.3d 1159, 1167 (9th
19
Cir. 2005) (“perhaps the most telling evidence that [defendant] was competent at trial is
20
that neither defense counsel—who would have had every incentive to point out that his
21
client was incapable of assisting with his defense—nor the trial court even hinted that
22
Boyde was incompetent.”). Trial counsel’s decision not to declare a doubt as to
23
Petitioner’s competency appears all the more reasonable in the context of the trial court’s
24
subsequent assessment that there “was absolutely nothing in [Petitioner’s] behavior to
25
indicate . . . that [he] was not able to assist in his defense, that he was not competent.” See
26
Hunter, No. A144413, 2018 WL 360089, at *7. Petitioner has not offered any evidence to
27
overcome the presumption that trial counsel’s conduct was reasonable.
28
In addition, Petitioner has not shown that there is a reasonable probability that, but
22
1
for trial counsel’s failure to declare a doubt, the result of the proceeding would have been
2
different. See Strickland, 466 U.S. 694. Petitioner cannot establish prejudice because the
3
trial court interacted with Petitioner at trial and did not believe him to be incompetent. See
4
Hunter, No. A144413, 2018 WL 360089, at *5–7. As the California Supreme Court held
5
in People v. Sattiewhite, 59 Cal.4th 446, 465 (2014), “[c]ounsel’s assertion of a belief in a
6
client’s incompetence is entitled to some weight. But unless the court itself has declared a
7
doubt as to the defendant’s competence, and has asked for counsel’s opinion on the
8
subject, counsel’s assertions that his or her client is or may be incompetent does not, in the
9
absence of substantial evidence to that effect, require the court to hold a competency
hearing.” Therefore, even if trial counsel had declared a doubt as to Petitioner’s
11
United States District Court
Northern District of California
10
competence, the trial court’s contrary conclusion shows that proceedings would not have
12
been suspended. Because the record indicates that the proceedings would have continued
13
even if trial counsel declared a doubt as to Petitioner’s competency, Petitioner cannot
14
establish that he was prejudiced by trial counsel’s failure to do so.
15
b. Trial counsel’s failure to raise a diminished actuality defense
16
Petitioner claims that his trial counsel was ineffective for failing to raise a
17
diminished actuality defense, i.e., that counsel failed to present evidence that Petitioner
18
suffered from a mental condition which prevented him from forming the specific intent
19
required for conviction, at trial. Petitioner’s claim fails because he does not overcome the
20
strong presumption that counsel acted within the wide range of reasonable professional
21
assistance, considered from counsel’s perspective at the time.
22
To succeed under the first prong of the Strickland ineffective assistance of counsel
23
standard, Petitioner must show that his trial counsel’s performance was deficient.
24
Petitioner has not shown that counsel’s conduct fell outside of the wide range of
25
reasonable professional assistance. See Strickland, 466 U.S. at 689. Petitioner argues that
26
trial counsel was ineffective because trial counsel had a duty to make reasonable
27
investigations, did not, and therefore failed to make an informed decision on litigation
28
strategy. Pet. at 27–28. Petitioner assumes, despite a lack of support in the record, that
23
1
trial counsel was aware of an additional psychiatrist’s conclusion, based on an interview
2
conducted two days after the incident at the DMV, that Petitioner was suffering from
3
bipolar disorder. See Pet. at 27. Even assuming that trial counsel was aware of that
4
conclusion, the doctor did not opine as to Petitioner’s mental state on the day of the
5
offense, nor whether Petitioner’s mental condition at the time of the offense was so
6
distorted as to negate the intent required for conviction. See Hunter, No. A144413, 2018
7
WL 360089, at *19. The information in that report therefore does not compel the
8
conclusion that any reasonable attorney who read that report would pursue a diminished
9
actuality defense.
Petitioner also points to his “prior history and the underlying facts of this case” as
10
United States District Court
Northern District of California
11
evidence that trial counsel’s decision not to investigate Petitioner’s mental illness and
12
therefore not raise a diminished actuality defense was unreasonable. Pet. at 27. However,
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Petitioner’s behavior at the DMV, while loud, aggressive and inappropriate, was not so
14
“bizarre” that it clearly suggests that he did not understand his actions. Rather, Petitioner
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was focused on Stanton—the woman he threatened—and expressed his intent to punish her
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for her alleged wrongdoing. Hunter, No. A144413, 2018 WL 360089, at *4. The
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prosecution’s evidence showed that Petitioner had harbored anger against Stanton for an
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extended period of time. Pet. Ex. B at 8. This evidence undermines the idea that
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Petitioner did not intend for Stanton to take his words as threats during the incident at the
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DMV. Given that evidence, this Court finds that a reasonable attorney could conclude that
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raising a diminished actuality defense would be a poor trial strategy and Petitioner’s claim
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thus fails.
CONCLUSION
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For the foregoing reasons, the petition for a writ of habeas corpus is DENIED. And
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25
pursuant to Rule 11 of the Rules Governing Section 2254 Cases, a certificate of
26
appealability (COA) under 28 U.S.C. § 2253(c) is DENIED because it cannot be said that
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“reasonable jurists would find the district court’s assessment of the constitutional claims
28
//
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