Fakalata v. Small

Filing 10

ORDER DENYING 1 Petition for Writ of Habeas Corpus filed by Sione Fakalata. Signed by Judge ARMSTRONG on 3/15/13. (lrc, COURT STAFF) (Filed on 3/21/2013)

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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6 SIONE FAKALATA,

Petitioner,

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vs.

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Case No: C 10-00370 SBA (pr)
ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS and
DENYING CERTIFICATE OF
APPEALIBILITY

9 LARRY SMALL, Warden,

Respondent.

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I.

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INTRODUCTION
Now before the Court is Petitioner Sione Fakalata’s pro se petition for a writ of

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habeas corpus under 28 U.S.C. § 2254 which seeks to challenge his 2001 conviction in San

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Mateo County Superior Court for first degree murder and other crimes. Respondent

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Warden Larry Small has filed an answer to the petition and Petitioner has filed a traverse.

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For the reasons discussed below, the petition is DENIED.

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II.

BACKGROUND

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A.

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On September 22, 2006, an amended information was filed in the San Mateo County

CASE HISTORY

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Superior Court charging Petitioner with first degree murder under California Penal Code

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section 187(a), three counts of robbery under California Penal Code section 212.5(c),

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battery causing serious bodily injury under California Penal Code section 243(d) and

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attempted robbery under California Penal Code sections 664 and 212.5(c). Court

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Transcript (CT) at 677-682. On October 16, 2006, a jury acquitted Petitioner of battery

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causing serious bodily injury but found him guilty of the remaining charges. CT at 883;

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891-99. The trial court sentenced Petitioner to an aggregate term of twenty-nine years and

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eight months-to-life in prison. CT at 993.

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On November 26, 2007, Petitioner appealed his conviction in the California Court of

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Appeal on the ground that the prosecutor engaged in prejudicial misconduct during his

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cross-examination and closing argument. Resp.’s Exh. 4, People v. Fakalata, A116627

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(Cal. Ct. App. Aug. 11, 2008). On August 11, 2008, the California Court of Appeal issued

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a written opinion in which it rejected Petitioner’s arguments and affirmed the judgment.

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Resp.’s Exh. 6; Petition, Appendix F, Fakalata, A116627 at 8-9. On October 28, 2008, the

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California Supreme Court summarily denied the petition for review. Resp.’s Exh. 8.

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On January 26, 2010, Petitioner filed the instant petition for a writ of habeas corpus,

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setting forth claims of prosecutorial misconduct based upon the prosecutor’s improper

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cross-examination of Petitioner and improper remarks during his closing argument. On

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August 25, 2010, the Court issued an order to show cause why the writ should not be

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granted. On December 7, 2010, Respondent filed an answer, as well as a memorandum of

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points and authorities, and lodged a number of exhibits. On February 10, 2011, Petitioner

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filed a traverse. The matter is now fully briefed and is ready for review on the merits.

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B.

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The following facts are taken from the state appellate court opinion on direct appeal:

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STATEMENT OF FACTS

Sometime after midnight on December 22, 2002, five friends,
Daniel Jesus, Miguel Martinez, Jose Martinez, Francisco
Molina, and Domingo Huerta, (fn. 1) were gathered at a cul-desac on Garden Street in East Palo Alto drinking liquor to
celebrate Jesus’s 20th birthday. As they were in the midst of
celebrating, four strangers approached them. The approaching
strangers, who appeared to be of Tongan descent, were
appellant, Remus Langi, Joe Ngaloafe and an unknown fourth
man. Appellant and his companions had come from another
party. The two groups began drinking and talking together in a
friendly manner.
fn 1: Although two of the victims have Martinez as their last
name, they are not related. In the interest of clarity, we will
refer to each of the victims by their first names. No disrespect
is intended.
As the two groups continued talking, Jose asked appellant if he
knew someone named Ashley, who he described as a Tongan.
This seemed to offend appellant. Appellant told Jose, “I'll
knock you out, fool.” Then almost immediately after saying
this, appellant punched Jose in the face, knocking him to the
ground. Jose tried to get up and was hit again. As he was on
the ground, he felt more than one person going through his
pockets.
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Around this time, appellant’s co-participant Langi punched
Miguel, the 19-year-old murder victim, causing him to fall to
the ground. Miguel fell onto his back, his head hit the
pavement, and although he was unconscious, he continued to be
beaten.
Daniel was also hit in the face, and he fell to the ground and lay
on his side. He was kicked repeatedly in the back of his head,
and he felt someone going through his pockets, taking his wallet
and keys.
Domingo went to help Miguel, who was lying partially on the
sidewalk and partially in the street. At some point, Domingo
was hit on the right side of his face from behind. He staggered
and then turned to see appellant. Appellant, who was joined by
Langi, continued hitting Domingo in the face until he fell to the
ground. He lay on his side, covering his face with both hands.
They kicked him and stepped on his head with enough force
that his face was cut by the concrete. At the same time, he felt
his pockets being rummaged through, although nothing was
taken.
Francisco was able to leave the area and call 911 emergency for
police assistance. Officers responded to the scene, at which
time appellant and his companions were leaving on foot. They
were asked to stop and appellant and Langi complied. Ngaloafe
did not initially comply, but he was stopped down the street by
another officer. The fourth suspect was no longer in the area
and has never been identified.
The responding officers recovered two sets of keys from Langi
that belonged to the victims Jose and Miguel. Daniel’s wallet
and keys were found thrown over a fence on Garden Street,
close to the cul-de-sac where the crime took place.
Miguel later died from brain swelling, which was caused by
blunt head trauma. The autopsy revealed eight areas of blunt
trauma to the head. He never regained consciousness after the
attack and was kept on life support until December 25, 2002.
Appellant testified at trial. He did not dispute that he was
present, that he participated in the fight, or that he told Jose, “I
will knock you out, fool.” He believed that Jose was
“stereotyping towards my people” because he asked appellant if
he knew his friend Ashley “the big Tongan.” He denied that he
had any intent to rob anyone and claimed he was unaware that
any property had been taken.

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During trial, the prosecution advanced a felony-murder theory.
The prosecutor argued that appellant created a dispute in order
to advance the commission of the robbery, which the evidence
showed had been planned from the beginning, because without
discussion “they all knew what to do and they all did it
effectively and efficiently and violently and brutally . . .” In
contrast, the defense asserted that Miguel died during a drunken
brawl, triggered by a seemingly trivial slight, in which both sets
of young men participated; and there was no advance plan to
rob anyone.
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Fakalata, A116626 at 1-3.

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The record also shows that Petitioner admitted on cross-examination that his

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testimony about what occurred on December 22, 2002, was different from the version of

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events that he told the police after he was arrested. Reporter’s Transcript (RT) at 923-41;

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946-47; 950-51; 960; 962. Also, blood from the murder victim and one of the beating

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victims was found on Petitioner’s clothing. RT at 701-02

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III.

STANDARD OF REVIEW

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The instant Petition is governed by the Antiterrorism and Effective Death Penalty

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Act of 1996 (“AEDPA”), 28 U.S.C. § 2254. Under AEDPA, a federal court cannot grant

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habeas relief with respect to any claim adjudicated on the merits in a state-court proceeding

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unless the proceeding “resulted in a decision that was contrary to, or involved an

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unreasonable application of, clearly established Federal law, as determined by the Supreme

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Court of the United States.” 28 U.S.C. § 2254(d)(1) (emphasis added).

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A state court decision is “contrary to” clearly established federal law “if the state

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court applies a rule that contradicts the governing law set forth in [Supreme Court] cases or

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if the state court confronts a set of facts that are materially indistinguishable from a

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decision of [the Supreme] Court and nevertheless arrives at a result different from [its]

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precedent.” Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (internal quotation marks

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omitted).

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Relief under the “unreasonable application” clause is appropriate “if the state court

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identifies the correct governing legal principle from [the Supreme] Court’s decisions but

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unreasonably applies that principle to the facts of the prisoner’s case.” Id. Habeas

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petitioners bear the burden of showing that a state court’s decision applied some Supreme

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Court precedent in an objectively unreasonable manner. Woodford v. Visciotti, 537 U.S.

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19, 25 (2002) (per curiam).

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In determining whether a state court’s decision is contrary to, or involves an

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unreasonable application of, clearly established federal law, courts in this Circuit look to

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the decision of the highest state court to address the merits of the petitioner’s claim in a
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reasoned decision. See Ylst v. Nunnemaker, 501 U.S. 797, 803-804 (1991); LaJoie v.

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Thompson, 217 F.3d 663, 669 n.7 (9th Cir. 2000).1 Moreover, “a determination of a factual

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issue made by a State court shall be presumed to be correct,” and the petitioner “shall have

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the burden of rebutting the presumption of correctness by clear and convincing evidence.”

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28 U.S.C. § 2254(e)(1).

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IV.

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DISCUSSION
Petitioner claims that the prosecutor engaged in misconduct during cross-

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examination and closing argument and that the cumulative effect of this conduct constituted

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a violation of his Fourteenth Amendment Due Process right to a fair trial. These claims are

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discussed seriatim.

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A.

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A claim of prosecutorial misconduct is cognizable in federal habeas corpus

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proceedings. The appropriate standard of review is the narrow one of due process and not

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the broad exercise of supervisory power. Darden v. Wainwright, 477 U.S. 168, 181 (1986).

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A defendant’s due process rights are violated when a prosecutor’s misconduct renders a

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trial “fundamentally unfair.” Id.; Smith v. Phillips, 455 U.S. 209, 219 (1982) (“the

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touchstone of due process analysis in cases of alleged prosecutorial misconduct is the

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fairness of the trial, not the culpability of the prosecutor”). Under Darden, the first issue is

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whether the prosecutor’s remarks were improper; if so, the next question is whether such

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conduct infected the trial with unfairness. Tan v. Runnels, 413 F.3d 1101, 1112 (9th Cir.

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2005). A prosecutorial misconduct claim is decided “‘on the merits, examining the entire

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proceedings to determine whether the prosecutor’s remarks so infected the trial with

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unfairness as to make the resulting conviction a denial of due process.’” Johnson v.

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Sublett, 63 F.3d 926, 929 (9th Cir. 1995) (citation omitted).

APPLICABLE LAW

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Because the California Supreme Court summarily denied relief on Petitioner’s
claims, this Court looks to the California Court of Appeal’s August 11, 2008 written
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The first factor in determining if misconduct amounted to a violation of due process

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is whether the trial court issued a curative instruction. When a curative instruction is

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issued, a court presumes that the jury has disregarded inadmissible evidence and that no

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due process violation occurred. Greer v. Miller, 483 U.S. 756, 766 n.8 (1987); Darden,

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477 U.S. at 182; Tan, 413 F.3d at 1115. This presumption may be overcome if there is an

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“overwhelming probability” that the jury would be unable to disregard evidence and a

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strong likelihood that the effect of the misconduct would be “devastating” to the defendant.

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Greer, 483 U.S. at 766 n.8.

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Other factors which a court may take into account in determining whether

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misconduct rises to a level of due process violation are: (1) the weight of evidence of guilt,

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United States v. Young, 470 U.S. 1, 19 (1985); (2) whether the misconduct was isolated or

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part of an ongoing pattern, Lincoln v. Sunn, 807 F.2d 805, 809 (9th Cir. 1987); (3) whether

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the misconduct relates to a critical part of the case, Giglio v. United States, 405 U.S. 150,

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154 (1972); and (4) whether a prosecutor’s comment misstates or manipulates the evidence,

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Darden, 477 U.S. at 182.

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B.

ANALYSIS
1.

Prosecutorial Misconduct—Cross-Examination

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Prior to trial, the court severed Petitioner’s case from the case of Remus Langi, one

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of the other individuals involved in the events that took place on December 22, 2002. RT

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at 155. One of the reasons for the severance was to prevent the spillover prejudicial effect

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of Langi’s prior juvenile record, in which he was found to have committed a robbery. Id.;

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People v. Fakalata, A116627 at 4. Petitioner claims that the prosecution improperly

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injected Langi’s record into Petitioner’s case by cross-examining Petitioner about his

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knowledge of Langi. Specifically, Petitioner objects to the following exchange during his

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cross-examination by the prosecutor:

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Q:

And even though you don’t remember Remus
going to Tonga, do you remember any other time
where he sort of disappeared for a while?

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A:

No.

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Q:

Did you know of anything that happened to him
when he was at Menlo-Atherton, at the high
school?

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A:

No.

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Q:

Were you aware that he had gone away from the
high school for about nine months.

A:

No, I wasn’t aware.

Q:

Remember him being out of circulation for nine
months, let me give you the dates.

Defense:

For the record, I am objecting to the form of the
question.

Court:

Sustained as to the form.

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Prosecutor: At the end of the year 2000, the beginning of
2001, do you remember Mr. Langi disappeared
again for about nine months?

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A:

I don’t know nothing about that.

Q:

Do you remember, did you know that he had
some trouble up in the juvenile court?

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Defense:

Objection. Irrelevant.

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Prosecutor: Just for his knowledge.

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Court:

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Sustained at this point.

RT at 918-19. At that juncture, the prosecutor asked to approach the bench, and the jury
was dismissed. RT at 919. After hearing argument from the attorneys, the court sustained
the defense objection, stating, “This is not an area of questioning that will be dealt with
here.” RT at 923. Later that day, counsel moved for a mistrial on the ground that the
prosecutor’s questions implied that the jury could find Petitioner guilty by association with
Langi. RT at 967.

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The trial court denied the motion for a mistrial and, at counsel’s request, instructed
the jury as follows:
Nothing that the attorneys say is evidence. In their opening
statements and closing arguments the attorneys will discuss the
case, but their remarks are not evidence. Their questions are
not evidence. Only the witness’s answers are evidence. The
attorneys’ questions are significant only if they help you to
understand the witness’s answers. Do not assume that
something is true just because an attorney asks a question that
suggests it is true.

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RT at 972. On appeal, Petitioner raised a claim based on improper questioning by the

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prosecutor. The California Court of Appeal denied this claim as follows:

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We must presume . . . that the trial court’s admonition
ameliorated whatever small prejudicial effect the prosecutor’s
questioning may have had. As a result of the trial court
promptly sustaining defense counsel’s objection, the prosecutor
never had an opportunity to develop this line of questioning, so
neither the prosecutor’s questions nor appellant’s responses
conveyed any damaging information about Langi’s criminal
past to the jury.

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Fakalata, A116627 at 7.
On federal habeas review, improper questioning of a witness by the prosecutor is

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not, standing alone, sufficient to warrant reversal. Ortiz v. Stewart, 149 F.3d 923, 934 (9th

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Cir. 1998). Rather, the relevant inquiry is “whether the prosecutor’s behavior so infected

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the trial with unfairness as to make the resulting conviction a denial of due process.” Id.

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(quoting Darden, 477 U.S. at 181). In considering whether the questioning deprived the

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defendant of a fair trial, the witness’ testimony should be viewed as a whole to determine

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the impact of the improper questioning. Id. at 934-35.

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Based on the record presented, it is clear that the prosecutor’s questioning of

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Petitioner regarding his knowledge of the whereabouts of Remus Langi did not deprive

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Petitioner of a fair trial. First, this was a brief and isolated instance in the prosecutor’s

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otherwise lengthy cross-examination of Petitioner. See RT 904-987. Second, the trial court

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sustained defense counsel’s objection to the prosecutor’s sole question about Langi’s

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“trouble in juvenile hall,” which, in turn, immediately extinguished this line of questioning
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and minimized any prejudicial effect from the question. Thus, even if the prosecutor was

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attempting improperly to put Langi’s criminal record into evidence, he was prevented from

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doing so. Third, because a jury is presumed to follow its instructions, see Greer, 483 U.S.

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at 766 n.8, the trial court’s admonition to the jury that “the attorneys’ questions are not

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evidence,” rectified whatever marginal prejudice was created by the prosecutor’s improper

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question. Further, as discussed below, the prosecution’s case against Petitioner was strong.

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All these factors weigh against the finding of a due process violation. Therefore, the Court

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finds that the state appellate court’s denial this claim was not unreasonable under AEDPA.

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2.

Prosecutorial Misconduct—Closing Argument

Petitioner claims that the prosecutor, during his closing argument, repeatedly

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implied that he possessed information, not disclosed to the jury, that the suspects had

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previously robbed and beaten people in the past. Petitioner cites the following sections of

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the prosecutor’s closing argument:

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We talked in voir dire about the idea of corroboration. We
talked about it with witnesses who were testifying. But it—the
concept applies to crimes also in terms of knowing what the
defendant intended and what the suspects intended, that they if
they do it, and over and over and over again the same way,
well, guess what, that’s why they are doing it.
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And then the instant that they’re on the ground, the beating goes
on and on and on, and property was taken from them. How
does that happen? It is not just a random occurrence in the
universe. There’s a plan and an intention from these guys. This
is what they do. They beat people to the ground, and they take
stuff from them while they’re doing it.
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Now, what’s—I put here is modus operandi. There’s nothing in
the instructions that you have about—it’s a phrase in the law
that talks about it's a plan. It’s—it’s in shorthand, there’s an
MO, how someone does something. They do it over and over
again. It can apply to a lot of things, serial killers, killing the
same way, people rob banks in certain ways. It becomes a
pattern. I put that up there to, again, talk about the idea there
were no instructions given here but they all knew what to do
because they all did it together over and over and over again. It
suggests a modus operandi, a way that they do things.
...

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There’s no real fight or battle or animosity with Danny Jesus or
Miguel Martinez or Domingo Huerta except that it’s a crime of
opportunity that these three thugs took to beat and rob these
guys for fun because they were angry because this is what they
do.
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So now it shifts and changes into something other than what it
was, was the signal, the punch to start the beating and robbery
because that’s what these guys do. That’s what they do over
and over again like they practiced it a thousand times.
RT at 1053, 1061, 1068, 1069, 1074.
At this point, defense counsel objected on the ground that there was no evidence that
pointed to a conspiracy. RT at 1074. The trial court agreed and instructed the jury:

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“Ladies and gentlemen, this is argument by counsel. The evidence that’s been introduced is

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dealing with what occurred on this night. That’s what the focus is here, that night.” Id.

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On appeal, Petitioner alleged that the prosecution’s remarks during closing argument

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amounted to prosecutorial misconduct. The California Court of Appeal rejected such

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claim, stating as follows:

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When prejudicial prosecutorial misconduct in closing argument
was raised as a ground for appellant’s motion for a new trial,
the prosecutor explained that the objected-to comments referred
to the repetitive nature of the conduct as suggesting a
preexisting plan or tacit agreement to beat and rob the victims.
His remarks, “clearly referred to the fact that after beating Jose
Martinez they did the same thing over and over again
accounting for all four of the victims who were beaten and
robbed.”
The trial court denied counsel’s motion for a new trial after
finding the prosecutor’s arguments properly related to the
circumstances of the crime. The court ruled that, “words
spoken by [the prosecutor] in that context certainly could have
been as it relates to the comment over and over again relating to
the multiple victims in this case . . . in terms of the lack of any
speaking, the actions that were taken, the beatings, going
through the pockets, and the like, I certainly don’t believe that it
rose to any level of prosecutorial misconduct. In addition to
that, I would note that when [defense counsel] made his
objection the Court in an abundance of caution instructed and
advised the jury at that point in time that they were only to be
focused on and concerned with the events of the night in
question as it relates to their fact finding purpose here.

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We agree with the trial court’s analysis of this issue. In viewing
the prosecutor's comments in the context of the argument as a
whole, it is not reasonably likely that the jury construed or
applied the complained-of remarks in an objectionable manner.
The state of evidence in this case was that all four of the victims
who were attacked by appellant and his cohorts had property
taken from them or attempted to be taken from them while they
were on the ground being beaten and kicked. During each of
the robberies, the victims did not hear any of the suspects
communicating with each other or giving each other
instructions on what course of action to take next, as they went
from one victim to the next in a continuous pattern of beating
and robbing. The prosecutor was entitled to argue the
evidentiary significance of the repetitive and methodical
manner in which the robberies and assaults were carried out to
support his theory that there was a preexisting intent to rob the
victims. Furthermore, the court’s admonition that the jury was
to focus only on the night in question ensured that the
prosecutor’s comments were not interpreted in an improper or
erroneous manner.

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On this record, we find appellant’s claim that cumulative
instances of prosecutorial misconduct deprived him of a fair
trial is totally without merit.

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Fakalata, A116627 at 7-8.
Where a habeas claim of prosecutorial misconduct during closing argument is

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alleged, the likely effects of the prosecutor’s statements are examined “in the context in

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which they were made to determine ‘whether the prosecutors’ comments so infected the

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trial with unfairness as to make the resulting conviction a denial of due process.’” Turner

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v. Calderon, 281 F.3d 851, 868 (9th Cir. 2002) (quoting Darden, 477 U.S. at 181)). “A

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court should not lightly infer that a prosecutor intends an ambiguous remark to have its

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most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that

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meaning from the plethora of less damaging interpretations.” Donnelly v. DeChristoforo,

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416 U.S. 637, 647 (1974). During closing arguments, a prosecutor is allowed a reasonably

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wide latitude and can argue reasonable inferences from the evidence. Fields v. Brown, 431

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F.3d 1186, 1206 (9th Cir. 2005); United States v. Gray, 876 F.2d 1411, 1417 (9th Cir.

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1989). However, it is improper for a prosecutor to make statements or inferences to the

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jury that he knows to be false or has a strong reason to doubt. United States v. Reyes, 577

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F.3d 1069, 1077 (9th Cir. 2009).
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In reviewing the prosecutor’s comments to which Petitioner objects, the Court of

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Appeals concluded that “the prosecutor was entitled to argue the evidentiary significance of

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the repetitive and methodical manner in which the robberies and assaults were carried out

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to support his theory that there was a preexisting plan to rob the victims.” Fakalata,

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A116627 at 8. The Court agrees that the gravamen of the prosecutor’s comments clearly

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relate to the night of the crime when the evidence showed that, after the victims had been

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knocked down to the ground, they were beaten over and over and had property taken from

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their pockets. However, two of the prosecutor’s comments arguably could be interpreted as

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referring to previous crimes committed by Petitioner and his companions. For instance, the

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prosecutor’s “modus operandi” comment and comparisons to “serial killers or bank robbers

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who carry out their crimes using the same pattern implied that Petitioner and his

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companions previously engaged in the same type of conduct that led to the charged

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offenses. Likewise, the comment that “they do it over and over like they practiced it a

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thousand times,” could be interpreted as inferring that Petitioner had engaged in this

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conduct many times before. These comments could thus be construed as improper because

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there was no evidence of previous crimes. However, as will be set forth below, these

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comments did not infect the trial with unfairness such that the resulting conviction

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amounted to a denial of due process. See Darden, 477 U.S. at 181.

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First, the trial court admonished the jury that the evidence focused only on the night

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in question that the attacks occurred. As stated previously, when a curative instruction is

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given, it is presumed that the jury follows it and that no due process violation occurred.

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See Greer, 483 U.S. at 766 n.8. No reason or evidence has been offered to show that the

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jury was not able to follow the instruction in this instance. Second, there was no pattern of

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continuing misconduct, see Lincoln, 807 F.2d at 809, because these two comments were

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made in the context of the prosecutor’s lengthy closing argument. See RT 1044-82

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(closing); 1111-23 (rebuttal). Finally, the weight of the evidence of guilt against Petitioner

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was strong. See Young, 470 U.S. at 19. Each of the four surviving victims testified

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essentially to the same events that occurred on the night of the murder. RT at 461-71; 573- 12 -

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98; 711-35; 789-806. Furthermore, Petitioner’s testimony had serious credibility issues

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because he admitted that, after he was arrested, he told the police an entirely different

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version of events than he told at trial. RT at 923-41; 946-47; 950-51; 960; 962. Finally,

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blood from the murder victim, Miguel Martinez, was found on Petitioner’s jacket cuff and

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blood from one of the beating victims, Jose Martinez, was found on Petitioner’s shoe. RT

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at 701-02.

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The aforementioned factors weigh against a finding that the prosecutor’s conduct

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infected the trial with unfairness such that his conviction was a violation of due process.

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Furthermore, under Brecht, 507 U.S. at 637, Petitioner has not demonstrated that any error

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had a substantial and injurious effect on the verdict. As discussed above, the court cured

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any error by admonishing the jury that the attorneys’ questions were not evidence and that

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the evidence in question related only to the night the crimes were committed. In addition,

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the prosecutor’s errors, if any, were only isolated instances and not part of an ongoing

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pattern; and the prosecutor’s case against Petitioner was strong, particularly in light of

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Petitioner’s credibility issues. Therefore, the Court finds that the California Court of

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Appeal’s denial of this claim was not unreasonable under AEDPA.

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3.

Cumulative Error

Finally, Petitioner contends that the cumulative effect of the prosecutor’s

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misconduct violated his constitutional right to a fair trial. After reviewing both claims of

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prosecutorial misconduct and finding none, the state Court of Appeal denied the claim of

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cumulative error, stating, “On this record, we find appellant's claim that cumulative

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instances of prosecutorial misconduct deprived him of a fair trial is totally without merit.”

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Fakalata, A116627 at 8.

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In some cases, although no single trial error is sufficiently prejudicial to warrant

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reversal, the cumulative effect of several errors may still prejudice a defendant so much that

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his conviction must be overturned. Alcala v. Woodford, 334 F.3d 862, 893-95 (9th Cir.

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2003). However, where no single constitutional error exists, nothing can accumulate to the

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level of a constitutional violation. Hayes v. Ayers, 632 F.3d 500, 524 (9th Cir. 2011);
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Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir. 2002). Similarly, no cumulative error is

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found where only one error exists. United States v. Solorio, 669 F.3d 943, 956 (9th Cir.

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2012).

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Because this Court has found that the state Court of Appeal’s rulings on Petitioner’s

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claims were not unreasonable under AEDPA, no constitutional error has been found and,

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thus, there can be no cumulative error. Accordingly, the claim based on cumulative error is

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denied.

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V.

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CONCLUSION
The state court’s adjudication of Petitioner’s prosecutorial misconduct claims did not

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

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established federal law, nor did it result in a decision that was based on an unreasonable

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determination of the facts in light of the evidence presented in the state court proceeding.

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

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

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

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from the Court of Appeals. Accordingly,

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IT IS HEREBY ORDERED THAT:

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1.

The petition for a writ of habeas corpus is DENIED.

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2.

A certificate of appealability is DENIED.

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3.

The Clerk shall close the file and terminate any pending matters.

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IT IS SO ORDERED.

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Dated: March 18, 2013

______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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SIONE FAKALATA,
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Plaintiff,

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v.
LARRY SMALL et al,
Defendant.
/

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Case Number: CV10-00370 SBA

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CERTIFICATE OF SERVICE
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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on March 21, 2013, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing
said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle
located in the Clerk's office.

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Sione Fakalata F-57505
Calipatria State Prison (CSP-CAL)
P.O. Box 5005
Calipatria, CA 92233

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Dated: March 21, 2013

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Richard W. Wieking, Clerk
By: Lisa Clark, Deputy Clerk
G:\PRO-SE\SBA\HC.10\Fakalata10-370-REVISED-OrderDenyPetition.docx

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