Ray v. Schomig

Filing 91

ORDER DENYING 1 Petition for Writ of Habeas Corpus; Denying Certificate of Appealability. Signed by Judge Yvonne Gonzalez Rogers on 6/6/13. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 6/6/2013)

1
2
3
4
5
UNITED STATES DISTRICT COURT
6
NORTHERN DISTRICT OF CALIFORNIA
7
OAKLAND DIVISION
8
9
No. C 10-01582 YGR (PR)

EDWARD V. RAY, JR.,

ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS;
DENYING CERTIFICATE OF
APPEALABILITY

Petitioner,
11
For the Northern District of California

United States District Court

10
vs.
12
MATTHEW CATE, Warden,
13
Respondent.
14

/

15
This matter is now before the Court for consideration of Edward V. Ray’s (“Petitioner”) pro
16
se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. The court ordered respondent to
17
show cause why the writ should not be granted. Respondent filed an answer and a memorandum of
18
points and authorities in support of it, and lodged exhibits with the court. For the reasons set forth
19
below, the Petition is DENIED as to all claims. In addition, no certificate of appealability will be
20
issued.
21
BACKGROUND
22
On March 20, 2007, a jury found Petitioner guilty of 21 counts of robbery on 15 separate
23
occasions between July 12, 2005, and August 27, 2006, see Cal. Penal Code § 211. Respondent’s
24
Exhibit (“Resp. Exh.”) A5 at 1095-1115, 1117. On four counts, the jury found true the allegation that
25
Petitioner personally used a firearm during the commission of the offense, and on two of those counts
26
the jury also found true the allegation that Petitioner personally inflicted great bodily injury, see Cal.
27
Penal Code §§ 12022.53(b), 12022.7. Resp. Exh. A5 at 1106-07, 1111-12. On April 17, 2007, the
28
court sentenced Petitioner to an aggregate term of 38 years and four months in prison. Resp. Exh. H

1 at 2. On November 23, 2009, the California Court of Appeal affirmed the judgment. Resp. Exh. H,
2 People v. Ray, Jr., 2009 WL 4023678 (Cal. App. 1 Dist.). Petitioner filed a petition for writ of
3 habeas corpus in the California Court of Appeal, which was denied on November 23, 2009. Resp.
4 Exh. I, L. On March 10, 2010, a petition for review of the Court of Appeal’s decision on direct
5 appeal, and a petition for writ of habeas corpus were both summarily denied by the California
6 Supreme Court. Resp. Exh. M, N.
7

The facts relating to Petitioner’s convictions, as described by the California Court of Appeal,

8 are as follows:
9

11
For the Northern District of California

United States District Court

10

12
13
14

Between July 12, 2005, and August 27, 2006, the Ray family (immediate and
extended) engaged in a prolific and profitable enterprise robbing a variety of
establishments, primarily convenience stores, in Oakland, Alameda, and Hayward.
Their entrepreneurial effort came to an abrupt halt on August 27, 2006, when both
Ray Jr. and Ray III were apprehended fleeing the scene of what proved to be their
last robbery-a 7-Eleven store at 2411 MacArthur Boulevard in Oakland. The
operation further unraveled when Ray III, in an apparent lack of filial devotion,
gave a detailed statement to the police chronicling the family exploits and the role
of his father, his sister Melissa, and her boyfriend Carrington in the various
robberies. Finally, Carrington accepted a plea bargain and testified against both
Ray Jr. and Ray III at trial. The offenses, and the evidence relating to each count,
are outlined here in chronological order.

15
16
17
18
19
20
21
22
23
24
25
26
27
28

Counts 2 and 3-Robberies of Allen Kung and Christina Miller at Longs Drugs in
Oakland on July 12, 2005 [Ray Jr. and Ray III]
The first chapter in this crime spree began on July 12, 2005, at a Longs Drugs
located at 51st Street and Broadway in Oakland (counts 2 & 3). Allen Kung was
the manager of the store and Christina Miller was a cashier. At about 11:50 p.m.,
three persons entered the store, wearing masks and gloves. Kung described one
individual as about six feet tall and skinny-about 150 pounds, wearing a grey
hooded sweater. Kung could tell by the individual's voice that he was a man, and
he could see through the openings in the mask that the man was Caucasian. The
second person was about five feet five inches tall, and wearing all black (Ray Jr. is
approximately five feet nine inches or five feet ten inches tall). Kung believed
from the person's voice that the second individual also was male. The shorter
robber carried a nine-millimeter handgun.
The taller robber pointed a gun at Christina Miller, demanding that she open the
safe or he would kill her. He ordered Kung to open the safe and also what the
robber referred to as the “Reno Box .” The “Reno box” was a box into which
cashiers would deposit large denomination currency. Store cashiers were familiar
with this term. Kung removed the money from the “Reno box,” from the change
box, and from the safe, dropping it into a duffel bag held by the shorter robber.
Kung estimated the loss at $50,000.
The robbery was captured on surveillance video. In his post-arrest statement, Ray
III stated that he had committed this robbery (as well as one other uncharged
offense) with “Ozell,” a friend whose last name he did not know.
2

1
2
3
4
5
6
7
8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15

Counts 5 and 6-Robberies of Sandeep Kumar and Kuldip Sekhon at the 7-Eleven
Store on Harrison Street in, Oakland on April 18, 2006 [Ray Jr. and Ray III]
On April 18, 2006, Sandeep Kumar and Kuldip Sekhon were working at the
7-Eleven store at 2350 Harrison Street, Oakland. At about 1:45 a.m., two men
arrived in a silver colored Honda (observed on surveillance video) and entered the
store. Both wore dark sweatshirts and had their faces covered. One was about five
feet seven inches tall, and the other a little taller. One had a small silver gun. Both
victims were ordered behind the register, and Kumar was forced to open the
register. The robbers took the cash trays with money, lottery tickets and cigarettes.
Counts 8 and 9-Robberies of Frezghi Tesfamicheal and Darshan Singh at the
7-Eleven Store on 41st and Broadway in Oakland on April 24, 2006 [Ray Jr. and
Ray III]
On April 24, 2006, at about 1:30 a.m., Frezghi Tesfamicheal and Darshan Singh
were working as clerks at the 7-Eleven store at 41st and Broadway in Oakland.
Two men exited a small silver car and ran into the store. One man, wearing a
black hooded sweatshirt, with his lower face covered, pointed a gun at
Tesfamicheal and told him not to move. He was about five feet seven inches tall,
and Tesfamicheal believed that the man was White from the area of his eyes that
Tesfamicheal could see. The second robber was taller, about six feet two inches
tall, wearing a grey sweatshirt, and seemed to be slightly older than the gunman.
The gunman ordered Singh to open the cash register, and made both Tesfamicheal
and Singh face the wall near the register. The men took cash from the register,
although Tesfamicheal did not know how much, and cigarettes.
Count 11-Robbery of Sandeep Kumar at the 7-Eleven Store on Harrison Street in
Oakland on April 29, 2006 [Ray Jr. and Ray III]

16
17
18
19
20
21

On April 29, 2006, at about 3:25 a.m., Sandeep Kumar and Kuldip Sekhon were
again working at the 7-Eleven store at 2350 Harrison Street, Oakland. Two men,
similar to the two who had earlier robbed the store, entered wearing sweatshirts
with hoods and cloths covering their lower faces. One had a small silver gun.
Kumar was ordered to open the cash register and to surrender the money. The
robbers also took cartons of cigarettes.
There was surveillance video of the robbery. Carrington identified the taller of the
two robbers shown on the video as Ray III and the other as Ray Jr. Ray III
admitted to police robbing this 7-Eleven store twice in April, and said that he
carried a plastic gun both times.

22
23
24
25
26
27
28

Count 12-Robbery of Nickolas Becker at Walgreens Drugstore at 34th Street and
Telegraph Avenue in Oakland on May 13, 2006 [Ray Jr. and Ray III]
On May 13, 2006, at about 10:00 p.m., the Walgreens at 34th Street and Telegraph
Avenue was closing for the evening. Nickolas Becker was the assistant manager.
Becker was at the door waiting for the last customers to leave when he saw a grey
Toyota or Honda pull up quickly. A man with a gun exited and ran toward Becker.
He described the gunman as about six feet tall and weighing 150-160 pounds,
wearing a black sweatshirt with a hood, and with his face covered with a red
bandana. From the facial area he could observe, Becker could tell that the gunman
was White. A second man, shown on surveillance video, entered the store behind
the gunman.
3

1
2

Becker was first forced to the floor and then walked to the cash register at
gunpoint when a clerk was unable to open the register. The robbers took the entire
till from the register with about $700. The second robber took packages and
cartons of cigarettes from the area of another register.

3
4

From the surveillance video, Carrington identified Ray Jr. as the person holding a
gun to Becker's head and Ray III as the second robber.

5

Count 14-Robbery of Melisew Ayenew at the 7-Eleven Store at 41st and Broadway
in Oakland on May 25, 2006 [Ray Jr. and Ray III]

6
7
8
9

11
For the Northern District of California

United States District Court

10

On May 25, 2006, at about 11:24 p.m., Melisew Ayenew was working as a clerk at
the 7-Eleven store at 4100 Broadway, Oakland when two men entered with their
faces partially covered and told everyone in the store not to move. One of the
robbers jumped the counter and took money from an open register. The other
pointed a pistol in Ayenew's face, demanding that he open another register, and
striking him in the face with the pistol and kicking him when he protested that it
was broken. The blow drew blood. The robbers took money from under the
register that Ayenew pointed out and cigarettes. Ayenew could see that one of the
robbers was White, but could not see the face of the other.

12
13

Carrington again viewed a surveillance video of the robbery and identified Ray Jr.
as the individual wearing a black hoodie and “army pants” and Ray III as the
person behind the register wearing a grey hooded sweatshirt. Ray III told police
that he had robbed this store two or three times using a plastic BB gun, but denied
hitting anyone.

14
15
16
17
18
19
20
21

Count 15-Robbery of Jose Hernandez at Round Table Pizza in Alameda on May
28, 2006 [Ray Jr. and Ray III]
On May 28, 2006, Jose Hernandez was the manager of the Round Table Pizza at
2611 Blanding Avenue, Alameda. The store, which was doing pickup and delivery
business only, was in a temporary trailer in an isolated area. At about 9:30 p.m.,
after the restaurant had closed, Hernandez was sitting with friends in a back patio
area when two men walked through the gate wearing dark clothes, with hoods over
their heads and blue and red bandanas on their faces. One had a chrome handgun
pointed at Hernandez. Hernandez was forced inside the trailer and made to open
the safe. The robbers took two day's worth of receipts, consisting of eight bundles
of currency. Hernandez described the gunman as between five feet eight inches
and five feet ten inches tall, with blue eyes. The second man was a little taller, and
thin. Hernandez identified Ray Jr. as someone he had seen before in the area of
the business.

22
23

Ray III, in his statement to police, said that he had robbed a Round Table in a
trailer in Alameda near the Fruitvale Bridge. He claimed that he had a plastic gun,
and that he took about $1,000.

24
25
26
27
28

Counts 16 and 17-Robberies of Yong Kim and Stephen MacManus at South Shore
Liquor Store in Alameda on June 23, 2006 [Ray Jr. and Ray III]
On June 23, 2006, at 9:30 p.m., two men wearing hoods and masks entered the
South Shore Liquor store, located in the South Shore Center in Alameda. The
owner, Yong Kim, was working at the cash register. Stephen MacManus was a
customer. The taller of the two men held what Kim described as a long black gun
and MacManus described as a shotgun with a black barrel and a dark brown stock.
4

1
2
3
4
5
6
7
8
9

The taller man pointed the shotgun at Kim and repeatedly demanded that he open
the register. Kim gave the man the entire cash drawer containing about $700. The
man with the shotgun then pointed it at MacManus and demanded his wallet.
MacManus complied. MacManus looked at the face of this robber for about five
to ten seconds, from a distance of about three feet. He could see the eyes,
forehead, and some of the hair, which he said was sandy brown. He identified Ray
Jr. in court as the man with the shotgun based on his complexion, the shape of his
face, the area around his eyes, the color of his hair, and his height. He said that the
build and general body shape of Ray III were consistent with the man with the
handgun. In separate police lineups, MacManus had been unable to identify either
Ray Jr. or Ray III.
Ray III admitted to police that he had robbed South Shore Liquor while wearing a
hoodie and a bandana, and said that he had used a plastic handgun.

11
For the Northern District of California

United States District Court

10

The man wore a black sweatshirt with the hood pulled up and a red bandana over
his lower face. He was about six feet tall, and both Kim and MacManus could tell
that he was White. The second man was shorter and held a grey or silver handgun.
He wore a grey hooded sweatshirt with the hood pulled up, and a blue bandana
over the lower part of his face.

12

Counts 18 and 19-Robberies of Seara Tesfamariam and Yash Hampaul at the
7-Eleven and 41st and Broadway in Oakland on June 30, 2006 [Ray Jr. and Ray
III]

13
14
15
16
17
18
19

On June 30, 2006, at about 4:00 a.m., two men with guns entered the 7-Eleven at
4100 Broadway in Oakland and told the clerk, Seara Tesfamariam, not to move.
Both men wore black coats, blue jeans, and ski masks. One man was taller than
Tesfamariam, who was five feet five inches tall, and the second man was taller
than the first. The taller of the two men jumped the counter and told “Yosh,”
another clerk in the store, to open the register. He opened the register at gunpoint
and the robbers took the money. They also took lottery tickets and cigarettes.
Police located a Honda Civic abandoned about five minutes away in the 2800
block of Webster Street with the engine still running, and with the steering column
and right rear window broken.
Carrington was unable to identify anyone from the surveillance video. This was
the store that Ray III admitted robbing two or three times.

20
21
22
23
24
25
26

Count 20-Robbery of Joseph Adkins at Walgreens in Alameda on July 6, 2006
[Ray Jr. and Ray III]
On July 6, 2006, at 4:49 a.m., two armed men entered the Walgreens drugstore in
the South Shore Shopping Center in Alameda. They were wearing black hooded
sweatshirts, and had handkerchiefs covering the lower part of their faces. The
shorter of the two men carried a shotgun, possibly sawed off, and the other had
what assistant manager Joseph Adkins described as a Glock nine-millimeter
handgun. The man with the shotgun forced Adkins to the registers and threatened
to “blow [his] fucking head off” when Adkins had difficulty with his password.
Once Adkins was able to open the register, the man grabbed the cash drawer which
contained about $300. The second robber jumped over the counter at another
register and took cigarettes. Adkins believed the robbers to be White or Hispanic.

27
28

Shortly after the time of the robbery, at about 5:00 a.m., Alameda police found a
black Honda Civic about 300 yards from the Walgreens, abandoned with the
5

1

engine running and the ignition tampered with.

2

Carrington identified Ray III as one of the two robbers shown in the surveillance
video, but “c[ould]n't say” who the other was. Carrington denied that he was the
second robber, noting that this man wore “army pants,” and that he never wore
such pants.

3
4
5

Ray III told police that he had robbed the Walgreens in South Shore in Alameda,
driving there in a stolen Honda Civic. He wore a hoodie, with a blue and white
bandana on his face, a took about $200 and cartons of cigarettes.

6
7
8
9

11
For the Northern District of California

United States District Court

10

12
13
14

Count 22-Robbery of Francis Shelley at the 7-Eleven Store on 23rd Avenue in
Oakland on July 10, 2006 [Ray Jr. and Ray III]
On July 10, 2006, at 6:00 a.m., Francis Shelley was a customer in the 7-Eleven
store at 324 23rd Avenue, Oakland. Two men entered, one with a gun, which
Shelley described as a short-barrel shotgun. The clerk, Rita Thapa, described the
gunman as about six feet tall and thin, wearing a sweatshirt, and with a dark blue
or black handkerchief covering his lower face. The second person was shorter and
wore a hooded sweatshirt. Both wore wrap-around sunglasses. Thapa thought
both were Black. Shelley thought the gunman was Hispanic or Black, but could
only see a small sliver of skin between the cheekbone and the sunglasses. Thapa
was ordered to open the register and did so.
The gunman demanded Shelley's wallet, which was on the counter. When Shelley
resisted the gunman struck him in the forehead with the weapon, drawing blood
and gashing the skin to the bone, and knocking him to the floor. The robbers fled
with the register cash drawer and with Shelley's wallet.

15
16
17
18
19

Shelley ran outside and saw the two men enter what he described as a burgundy
front-wheel drive Japanese car, which a third person was driving. He was later
taken by police to a location across from 527 23rd Avenue, near the Park Street
Bridge to Alameda, where he identified a red Honda as the getaway car. The car
had been found abandoned, with the engine running, no key in the ignition, and the
ignition and steering column tampered with.
Shelley was taken to the hospital by ambulance for treatment of his wound. The
wound required packing and stitches, and left a visible scar.

20
Ray III admitted to police that he had robbed the 7-Eleven store on 23rd Avenue.
21
22
23

Count 23-Robbery of Andy Truong at AM/PM Market on Park Street in Alameda
on July 18, 2006 [Ray Jr., Ray III and Carrington]

27

On July 18, 2006, at approximately 5:24 a.m., Andy Truong was stocking
merchandise in the AM/PM Market at 1260 Park Street, Alameda. Three men
entered the store, one with a shotgun and another with a handgun. The man with
the shotgun was wearing a hooded sweatshirt, gloves and a red bandana. Truong
described him as White, in his 30s, and about five feet seven and one-half inches
tall. The second gunman was younger, also White, and about seventeen or
eighteen years old. The surveillance video showed that the man had his face
covered with a blue bandana, although Truong did not recall this. The third person
was a tall Black man.

28

The robber with the shotgun repeatedly ordered Truong to open the register, saying

24
25
26

6

1
2
3
4
5
6
7
8

“open the fucking register,” but Truong was unable to do so. He gave them a four
digit code which failed to work, but they were ultimately able to open the register
using the first two digits. They took the money. Before they left the older man
with the shotgun said, “You lied to me,” and struck Truong in the head with the
shotgun. Truong suffered a bleeding wound requiring eight staples to close.
Carrington testified that he committed the robbery with Ray Jr. and Ray III. He
said that Ray Jr. had a shotgun, Ray III had a toy gun or a knife, and that he carried
a toy shotgun. They drove to the scene in a stolen Honda. He saw Ray Jr. hit the
Asian store clerk in the head with the shotgun before they left. Carrington
identified Ray Jr. on photographs from the surveillance video as the person with
the shotgun, and Ray III as the person at the register wearing the light blue
bandana. He also identified himself on the tape. Ray Jr., giggling and laughing,
later showed Carrington a newspaper article about the robbery mentioning the fact
that the clerk required stitches. Ray Jr. appeared excited that he had made the
papers.

9
During his police interview, Ray III was shown the surveillance video and
identified himself and Carrington on the tape. They drove to the location in a
stolen Honda, and took money and cigarettes.

11
For the Northern District of California

United States District Court

10

12
13

The surveillance video also recorded the demands by the person with the shotgun
that Truong “open the fucking register.” Although Ray Jr. denied in his testimony
that it was his voice on the tape, the video was played for the jury and the
prosecution argued that Ray Jr.'s distinctive regional accent could be identified on
the recording.

14
15
16
17
18
19
20

Count 25-Robbery of Issa Abdul-Kareem at the 7-Eleven Store at 4720 MacArthur
in Oakland on August 1, 2006 [Ray Jr. and Ray III]
On August 1, 2006, at 3:55 a.m., two men with masks entered the 7-Eleven store at
4720 MacArthur Boulevard, Oakland. The clerk, Issa Abdul-Kareem, could tell
from what skin area he could see that both were White. He said both were young,
between 25 and 30 years old, and he described one as about five feet ten inches tall
and 150 pounds. They talked to each other during the robbery “like family.” One
man had a gun and the other a knife. With both the gun and knife pointed at him,
Abdul-Kareem opened the cash register and the men took the money from it. One
of the men also took beer. He saw them flee in a newer Honda Civic. Police
located the car about a block away with the motor running and the driver's door
open.

21
22

The robbery was captured on surveillance video. Ray III admitted to a robbery of
a 7-Eleven store “over by Seminary” about August 1st in which he used two stolen
cars, and in which he used a knife.

23
24

Counts 26 and 27-Robberies of Alan Rodrigues and Annica Henderson at the
7-Eleven Store on Aldengate Way in Hayward on August 8, 2006 [Ray Jr., Ray III,
and Carrington]

25
26
27
28

On August 8, 2006, at 4:11 a.m., Alan Rodrigues was just leaving the 7-Eleven
store on Aldengate Way in Hayward when three men with masks jumped out of a
car parked behind Rodrigues's truck. They ordered him back into the store at
gunpoint, with what he thought was a rifle. He described the man with the rifle as
White and about five feet ten inches to six feet tall. This robber demanded
Rodrigues's wallet, while the other two went behind the counter and opened the
7

1

cash register. They left with money and beer.

2

Annica Henderson was also a customer inside the store when she saw the three
robbers enter. One of the men, carrying what she thought was a small shotgun,
demanded her wallet. She did not have one, but gave him $20. She described the
person who took her money as the tallest of the three, about five feet eleven inches
or six feet tall, with a thin build, wearing a pullover sweatshirt, and with a bandana
covering his nose and mouth. She believed he was African-American. She
described one of the other two as between five feet six inches and five feet eight
inches tall, wearing a light colored hooded sweatshirt and a dark bandana, and
carrying a knife. She could see from the skin around his eyes that he was
Caucasian. The third robber, standing next to the other customer, was about five
feet eight inches or taller, wearing a dark pullover sweatshirt and a bandana on his
face. She thought he was African-American.

3
4
5
6
7
8
9

11
For the Northern District of California

United States District Court

10

12
13
14

The robbery was captured on surveillance video. Carrington testified that he, Ray
Jr. and Ray III went to the store in a stolen Honda. He identified Ray Jr. as the
person wearing a black hoodie and camouflage pants. He identified himself
behind the register wearing a blue jacket, and Ray III as the person next to him,
wearing a beanie cap with the word “Oakland” on it. Ray III described to police a
7-Eleven robbery in Hayward in which they had forced a customer back into the
store. He identified himself from still photos taken from the surveillance video
wearing a black knit cap with the words “Oakland 510 bound” on it, and
Carrington wearing a skateboard coat. He also identified a photo of Rodrigues as
the person they had forced back into the store.
Count 1-Robbery of Ved Goyal at the 7-Eleven Store on 2411 MacArthur
Boulevard in Oakland on August 27, 2006 [Ray Jr. and Ray III]

15
16
17
18
19
20
21
22
23
24
25
26
27
28

On August 27, 2006, at about 12:55 a.m., Ved Goyal and Mangit Singh were
working at the 7-Eleven store at 2411 MacArthur Boulevard, Oakland. Two men
entered the store wearing masks. One grabbed Goyal and took him toward the
cash register. Singh described one man as taller, about six feet tall, and the other
as shorter, about five feet seven inches or five feet eight inches tall. Singh thought
the taller man was Black, and the shorter man was White. The taller man had a
gun and demanded that Goyal open the register. The two men took the cash tray
from the register and put it in a bag. The men also took a set of keys, and the man
with the gun took a carton of cigarettes. The men ran to a car parked sideways in
the parking lot.
Oakland Police Officer Christopher Saunders was driving past the 7-Eleven store
at about 12:55a.m., when he saw three men run from the store, one with his hands
up. Two of the men ran to a green Honda Civic in the middle of the store's parking
lot. One had a red bandana over his face and the other wore a blue and black
windbreaker jacket with the hood pulled up. Both were White. Saunders ordered
the men to stop at gunpoint, but they entered the car and fled from the scene with
the officer in pursuit.
After a high speed chase for about four miles, Saunders was able to force the
Honda into a spin on East 12th Street, near Third Avenue. Ray Jr. was removed
from the driver's seat and Ray III from the passenger seat. Saunders had to break
open the passenger window to forcibly remove Ray III from the vehicle. Ray Jr.
resisted arrest and officers used a Taser to subdue him. Ray Jr. was photographed
wearing a dark blue shirt with an Oakland Raiders logo, and Ray III was wearing a
blue and black hooded jacket. Ray Jr. was wearing gardening gloves on both
8

1

hands when arrested.

2

The cash register drawer with money was on the back seat of the Honda, and a
carton of cigarettes was on the front passenger floorboard. A red bandana was
found between the driver's seat and the door. Also recovered from the car were
gloves, a beanie cap with an Oakland Raiders logo, and a plastic toy gun with a
portion of the butt broken. The ignition on the steering column of the vehicle had
been punched out.

3
4
5

Search of the Ray's Recreational Vehicle
6
7
8
9

11
For the Northern District of California

United States District Court

10

Acting on information provided by Ray Jr. following his arrest, a white RV/van
with a stripe on the side belonging to the Ray family was located at 65th Street and
Telegraph Avenue in Oakland in the early morning hours of August 27, 2006. Ray
Jr.'s wife, Tina Ray, Melissa and a younger daughter were contacted in the RV. A
search warrant for the RV was obtained, and police recovered camouflage pants,
gloves, a box for a replica handgun with a laser sight, black baseball caps with
Raider emblems, and computer printouts and hand-written notes and diagrams on
how to hotwire vehicles. A Honda Civic with a punched ignition was located less
than a block away from the RV.
Ray III's Statements to Police.

12

16

As discussed above, Ray III gave a statement in which he admitted involvement in
the series of robberies. He said that he typically wore a hat and a bandana in the
robberies, and frequently wore a hoodie and gloves. He said that toy guns were
usually used, and denied using a real gun. He admitted, however, that there was a
single barrel shotgun with a pistol grip that “maybe” was used in one of the
robberies. On the day of the last 7-Eleven robbery he had stolen two Honda
Civics, as he usually did. Melissa was waiting in the second stolen Honda one
street away.

17

Ray Jr.'s Statements to Police

18

While being transported to the hospital after being tasered during his arrest, Ray Jr.
said to the transporting officer “[a]ll you got me on is a 211” and “I know who
you're looking for. I read the papers. You guys have been betting on who is going
to get us.” During the ride to the hospital, Ray Jr. had removed the gloves he had
been wearing, and they were found in the rear seat of the patrol car. When
transported that same evening from the hospital to the police station, Ray Jr. said
“I know I'm a bad example for a father. I'm worried about my son for getting him
involved. I know this is a bad one. How much time do you think I'll get for this
one?”

13
14
15

19
20
21
22
23

27

Ray Jr. was interviewed by detectives on August 27, 2006, at 10:57 p.m. He said
that he lived in the RV with his wife and three children, including Ray III and
Melissa. In the recorded portion of the interview, he admitted committing the
7-Eleven robbery for which he had been apprehended, saying that he had entered
the store wearing his black Raider's shirt and a red “scarf” on his face, carrying a
toy gun, and that he “went for” the register. After the recording was turned off, he
further stated that he was responsible for some, but not all of the other robberies,
that “people” in an area where he used to live on Pearl Street in Oakland were
“framing” him, and that he had an alibi

28

Evidence of Ray Jr.'s Post-Arrest Conduct

24
25
26

9

1
2
3
4
5
6

On February 21, 2007, prior to his trial testimony, Carrington was inadvertently
placed in a holding cell with Ray Jr. and other inmates. Ray Jr. told other inmates
that Carrington was “snitching” and as a result, Carrington was assaulted by
another inmate. Ray Jr. told Carrington not to testify.
At the time of the preliminary hearing on November 1, 2006, Ray Jr. was searched
and a note was found in his sock. The note, which was read to the jury during
cross-examination of Ray Jr. at trial, appeared to be directed to Ray III: suggesting
that Ray III confess; promising money to Ray III if he got out; and saying, “If you
do take this, I will owe you forever.” Ray Jr. denied writing or reading the letter,
and said that someone had handed it to him on the prison bus.

7
Ray Jr.'s Trial Testimony.
8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20

Ray Jr. testified, denying involvement in any of the robberies, including the
7-Eleven robbery where he was arrested fleeing the scene. He said that he went to
the 7-Eleven that night to pick up Melissa. Melissa jumped into the car with a
brown paper bag. Ray Jr. started to enter the store when Carrington almost
knocked him down running out. He and Ray III then ran to the car and he fled
from the police because he knew the car that they were driving was stolen.
Melissa and Carrington fled separately. He denied having the toy gun found in his
car, said that he was wearing a bandana around his neck (and not on his face)
because it was “chilly,” and said that the garden gloves he was wearing were his
“driving gloves .” He denied confessing to the robbery, and said that he had not
mentioned Carrington to police after his arrest because Carrington was at large and
he feared for his family. He insisted “... as I [have] stated numerous times[,] I'm a
law abiding citizen. I have no prior offenses.... I've never been convicted of any
drug offense or anything. I had a minor alcohol problem which I have canned by
taking classes. Other than that, I don't have a record.” On cross-examination he
denied physically assaulting his daughters, having smoked crack cocaine, or telling
police officers that he had smoked crack cocaine and marijuana in front of his
children. He admitted that he had been charged with public drunkenness and
disorderly conduct, charged with aggravated assault on Tina Ray in Pennsylvania,
and that he had been put on probation for simple assault on Tina as a result in what
he termed as “drunken melee.” He insisted, however, that “I'm not a violent
person.”

22

Officer James Saleda of the Oakland Police Department testified in rebuttal.
Saleda interviewed Ray Jr. in custody on March 8, 2001, in connection with an
investigation for physical abuse of his daughter, Melissa. In that interview Ray Jr.
admitted to striking his wife and two of his daughters, and smoking both crack
cocaine and marijuana in his house.

23

The Verdicts

24

Two charged counts against Ray Jr. and Ray III (counts 10 & 21) were dismissed
by the court on the District Attorney's motion at the close of the prosecution
evidence (§ 1118.1). On March 20, 2007, a jury convicted Ray Jr. of 21 counts of
second degree robbery as charged (§ 211; counts 1-3, 5, 6, 8-9, 11-12, 14-20,
22-23, 25-27) and found true allegations that he personally used a firearm in the
commission of four of the robberies (§§ 12022.5, 12022.53, subd. (b); counts
16-17, 22-23), was armed with a firearm in the course of four offenses (§ 12022,
subd. (a)(1); counts 2-3, 26-27), and that he inflicted great bodily injury in two
instances (§ 12022.7; counts 22-23).

21

25
26
27
28

10

1

Sentencing

2

On April 17, 2007, Ray Jr.'s motion for new trial, motion to set aside the verdict,
and motion to dismiss the weapons enhancements were all denied. He was found
to be ineligible for probation by virtue of the firearm use enhancements, and
sentenced to an aggregate term of 38 years 4 months in state prison. He filed a
timely notice of appeal on that date.

3
4

5 Resp. Exh. H at 3-23 (footnotes omitted).
6

STANDARD OF REVIEW

7

A district court may not grant a petition challenging a state conviction or sentence on the basis

8 of a claim that was reviewed on the merits in state court unless the state court's adjudication of the
9 claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of,

11 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the
For the Northern District of California

United States District Court

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

12 evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). The first prong applies both
13 to questions of law and to mixed questions of law and fact, see Williams (Terry) v. Taylor, 529 U.S.
14 362, 407-09 (2000), while the second prong applies to decisions based on factual determinations. See
15 Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
16

A state court decision is “contrary to” Supreme Court authority, that is, falls under the first

17 clause of § 2254(d)(1), only if “the state court arrives at a conclusion opposite to that reached by [the
18 Supreme] Court on a question of law or if the state court decides a case differently than [the
19 Supreme] Court has on a set of materially indistinguishable facts.” Williams (Terry), 529 U.S. at
20 412-13. A state court decision is an “unreasonable application of” Supreme Court authority, falling
21 under the second clause of § 2254(d)(1), if it correctly identifies the governing legal principle from
22 the Supreme Court’s decisions but “unreasonably applies that principle to the facts of the prisoner’s
23 case.” Id. at 413. The federal court on habeas review may not issue the writ “simply because that
24 court concludes in its independent judgment that the relevant state-court decision applied clearly
25 established federal law erroneously or incorrectly.” Id. at 411. Rather, the application must be
26 “objectively unreasonable” to support granting the writ. Id. at 409.
27

Under 28 U.S.C. § 2254(d)(2), a state court decision “based on a factual determination will

28 not be overturned on factual grounds unless objectively unreasonable in light of the evidence
11

1 presented in the state-court proceeding.” See Miller-El, 537 U.S. at 340; see also Torres v. Prunty,
2 223 F.3d 1103, 1107 (9th Cir. 2000).
3

When there is no reasoned opinion from the highest state court to consider the petitioner’s

4 claims, the court looks to the last reasoned opinion. See Ylst v. Nunnemaker, 501 U.S. 797, 801-06
5 (1991); Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir. 2000). Thus, a federal court will
6 “look through” the unexplained orders of the state courts rejecting a petitioner’s claims and analyze
7 whether the last reasoned opinion of the state court unreasonably applied Supreme Court precedent.
8 See Ylst, 501 U.S. at 804-06. However, when presented with a state court decision that is
9 unaccompanied by a rationale for its conclusions, a federal court must conduct an independent review

11 v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). This review is not a “de novo review of the
For the Northern District of California

United States District Court

10 of the record to determine whether the state-court decision is objectively unreasonable. See Delgado

12 constitutional issue;” rather, it is the only way a federal court can determine whether a state-court
13 decision is objectively unreasonable where the state court is silent. See Himes v. Thompson, 336 F.3d
14 848, 853 (9th Cir. 2003). “[W]here a state court's decision is unaccompanied by an explanation, the
15 habeas petitioner's burden still must be met by showing there was no reasonable basis for the state
16 court to deny relief.” See Harrington v. Richter, 131 S. Ct. 770, 784 (2011).
17
18

DISCUSSION
As grounds for federal habeas relief, Petitioner asserts the following claims: (1) statements

19 were used at trial that were obtained without a proper Miranda warning having been given; (2) his
20 Sixth Amendment right to counsel was violated when a videotaped lineup was held at which counsel
21 was not present; (3) his speedy trial rights under the Sixth Amendment were violated because trial
22 was not held within 60 days; (4) he is actually innocent in the “string of takeover robberies” in
23 Oakland; (5) the prosecutor committed misconduct in several different ways; (6) his Fourteenth
24 Amendment rights were violated by the imposition of sentence enhancements that were not supported
25 by the evidence; (7) the failure to sever his trial from that of a co-defendant, and the use of the co26 defendant’s statement violated his Sixth Amendment right to confront witnesses; (8) trial counsel was
27 ineffective in several different ways; (9) appellate counsel was ineffective for failing to raise several
28 issues on appeal; (10) the appellate court judge “changed testimony given during trial”in the appellate
12

1 opinion; (11) the trial court’s use of modified CALCRIM No. 3515 over his objection violated his
2 right to due process; (12) the trial court erred by failing to instruct the jury on the law of accomplices;
3 (13) the evidence was insufficient to support the conviction; (14) the improper admission of opinion
4 testimony violated his right to a fair trial; (15) his statements made to police were involuntary and
5 coerced; and (16) his sentence amounts to cruel and unusual punishment. Petition for Writ of Habeas
6 Corpus (“Hab. Pet.”) at 7-45.
7

The court found that Petitioner failed to exhaust state court remedies for claim 2, portions of

8 claims 6, 7, and 8, and claim 13, and dismissed claim 4 because it was not cognizable in federal
9 habeas, and, at Petitioner’s request, dismissed portions of claims 8, 12, and 14. Order, April 15,

11 Accordingly, Petitioner’s claims 1, 3, 5, 6 (in part), 7 (in part), 8 (in part), 9, 10, 11, 13 (in part) 15,
For the Northern District of California

United States District Court

10 2011. Petitioner elected to proceed with only the exhausted claims. Order, April 18, 2012.

12 and 16 will be addressed on the merits.
13 I.

Miranda Violation

14

Petitioner claims that the prosecution’s use of statements he made in the police car while

15 being transported to the hospital, and from the hospital to the police station, violated his
16 constitutional rights because he was not given his Miranda warnings. Hab. Pet. at 7.
17

A. Factual Background

18

Petitioner was arrested following a high speed chase with police after robbing a 7-Eleven in

19 Oakland. Resp. Exh. H at 19-20. At trial, Oakland police officer Martin Ziebarth testified that at the
20 scene of the arrest, he handcuffed Petitioner, placed him in the patrol car, obtained his name and date
21 of birth, and drove him to the hospital. Resp. Exh. B6 at 966. On the way to the hospital, and later
22 from the hospital to the police station, Petitioner “would not stop talking,” and made several
23 potentially incriminating statements that were documented by Officer Ziebarth in a supplemental
24 report, as described in the California Court of Appeal’s opinion. Id. at 968-71, 984-88, Exh. H at 21.
25 Officer Ziebarth further stated that the conversation was “one-sided,” and that in conversing with
26 Petitioner he was not trying to elicit any incriminating responses, but just “let him talk.” Id. at 98827 90.
28 ///
13

1

B. Legal Standard

2

In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court held that certain warnings

3 must be given before a suspect's statement made during custodial interrogation can be admitted in
4 evidence. Miranda and its progeny govern the admissibility of statements made during custodial
5 interrogation in both state and federal courts. Id. at 443-45. Miranda requires that a person subjected
6 to custodial interrogation be advised that "he has a right to remain silent, that any statement he does
7 make may be used as evidence against him, and that he has a right to the presence of an attorney."
8 See Miranda, 384 U.S. at 444. The warnings must precede any custodial interrogation, which occurs
9 whenever law enforcement officers question a person after taking that person into custody or

11
For the Northern District of California

United States District Court

10 otherwise significantly deprive a person of freedom of action. Id.
Miranda safeguards come into play whenever a person in custody is subjected to either

12 express questioning or its functional equivalent, and also applies to any words or actions on the part
13 of the police that the police should know are reasonably likely to elicit an incriminating response.
14 See Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980); see also Cox v. Del Papa, 542 F.3d 669,
15 676-77 (9th Cir. 2008) (finding it proper to deny suppression of defendant's spontaneous, unsolicited,
16 and unprompted remarks made while in custody, because Miranda applies only when a suspect is
17 subjected to interrogation).
18

The requirements of Miranda are "clearly established" federal law for purposes of federal

19 habeas corpus review under 28 U.S.C. § 2254(d). See Juan H. v. Allen, 408 F.3d 1262, 1271 (9th Cir.
20 2005); Jackson v. Giurbino, 364 F.3d 1002, 1009 (9th Cir. 2004).
21

C. Discussion

22

Petitioner’s claim lacks merit. The record is completely devoid of any evidence that would

23 demonstrate that Officer Ziebarth, while transporting Petitioner, was trying to elicit any incriminating
24 statements. Likewise, Petitioner offers nothing to support a finding that his statements were the
25 product of interrogation, rather than spontaneous, unsolicited remarks. After an independent review
26 of the record, the court finds that the state court decision denying Petitioner’s claimed Miranda
27 violation was not objectively unreasonable. See Delgado, 223 F.3d at 982.
28
14

1 II.

Speedy Trial

2

Petitioner claims that his Sixth Amendment right to a speedy trial was violated because his

3 trial began after the 60-day limit established by California state law. Hab. Pet. at 7. Petitioner first
4 raised this claim in his state habeas petition, arguing that the trial court violated his right to a speedy
5 trial because he was not brought to trial within 60 days from when he was first held to answer the
6 charges. Resp. Exh. I at 3. The Court of Appeal declined to review the claim because Petitioner
7 failed to raise the issue on direct appeal. Resp. Exh. L at 1-2.
8

Under federal law, to determine if an accused's Sixth Amendment right to a speedy trial has

9 been violated, the court must look to (1) the length of the delay; (2) the reason for the delay; (3)

11 Williams, 782 F.2d 1462, 1465 (9th Cir.1985). However, the threshold inquiry is whether the alleged
For the Northern District of California

United States District Court

10 assertion of the right by the defendant; and (4) prejudice to the defendant. See United States v.

12 delay was presumptively prejudicial, otherwise no need exists to inquire into the other factors. See
13 Barker v. Wingo, 407 U.S. 514, 530 (1972).
14

Petitioner waived formal arraignment on November 27, 2006. Resp. Exh. A4 at 893. Jury

15 trial commenced on January 29, 2007, which was two days after the expiration of the 60-day limit. A
16 delay of this length is not presumptively prejudicial for Sixth Amendment purposes. See United
17 States v. Doggett, 505 U.S. 647, 652 n. 1 (1992) (finding that a delay approaching one year is
18 presumptively prejudicial to trigger speedy trial analysis under the Sixth Amendment). Thus, in
19 addition to being procedurally barred under state law, Petitioner’s Sixth Amendment speedy trial
20 claim does not entitle him to federal habeas relief.
21

As referenced, California law allows for 60 days from the date of arraignment for a defendant

22 to be brought to trial, see Cal. Penal Code § 1382(c)(2), and jury trial commenced two days after the
23 expiration of the 60-day limit. To the extent that Petitioner is challenging the trial court’s denial of
24 his motion to dismiss under Cal. Penal Code § 1382(a)(2), the claim is not cognizable on federal
25 habeas review. See Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (“it is not the province of a
26 federal habeas court to reexamine state-court determinations on state-law questions.”).
27 ///
28 ///
15

1 III.

Prosecutorial Misconduct

2

Petitioner claims that the prosecutor committed misconduct in the following different ways:

3 (1) by failing to disclose exculpatory evidence pursuant to its obligation under Brady v. Maryland,
4 373 U.S. 83, 87-88 (1963); (2) by violating his right to confront and cross-examine witnesses against
5 him because the victims of counts 1, 3, 6 and 9 did not testify or otherwise appear at the trial; (3) by
6 redacting his co-defendant’s statement to remove a portion that was favorable to him; (4) by referring
7 to his drug use during closing argument; (5) by introducing evidence of two prior misdemeanors that
8 resulted in convictions; (6) by suggesting that he introduced his son, Ray III, to crack cocaine; (7) by
9 improperly vouching for a witness; (8) by referencing facts that were not in evidence during her

11 at 10-15.
For the Northern District of California

United States District Court

10 closing argument; (9) and by knowingly using perjured testimony to obtain the conviction. Hab. Pet.

12

It appears that Petitioner’s Brady claim is the only one that has been properly exhausted.

13 However, respondent has waived the issue by addressing the merits of Petitioner’s remaining claims.
14 See United States v. Doe, 53 F.3d 1081, 1082-83 (9th Cir. 1995). The court will therefore exercise its
15 discretion and reach the merits of Petitioner’s claims. See Boyd v. Thompson, 147 F.3d 1124, 1127
16 (9th Cir. 1998).
17

A. Brady Claim

18

Petitioner claims that the prosecutor failed to disclose evidence of a similar convenience store

19 robbery that took place in East Oakland after Petitioner was arrested and in custody on the instant
20 charges. Hab. Pet. at 10. Petitioner refers the court to a newspaper article describing a three-man
21 robbery of the Ed-Green convenience store in East Oakland that happened on February 24, 2007 and
22 was captured by surveillance footage. Hab. Pet. Exh. I at 61. Petitioner contends that the article’s
23 description of the robbery, along with an accompanying photo from the surveillance camera footage,
24 depicts a modus operandi that was sufficiently similar to the instant charges such that it triggered the
25 prosecutor’s obligation to disclose material, exculpatory evidence under Brady, and that the willful
26 suppression of this information until after his conviction violated this obligation. Id. at 67.
27 ///
28 ///
16

1
2
3
4
5
6
7
8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

i. Legal Standard
In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that "the suppression by
the prosecution of evidence favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the
prosecution." Id. at 87. The Supreme Court has since made clear that the duty to disclose such
evidence applies even when there has been no request by the accused, see United States v. Agurs, 427
U.S. 97, 107 (1976), and that the duty encompasses impeachment evidence as well as exculpatory
evidence, see United States v. Bagley, 473 U.S. 667, 676 (1985).
There are three components to a Brady violation. See Benn v. Lambert, 283 F.3d 1040, 1052
(9th Cir. 2002). First, the suppressed evidence must be favorable to the accused. See Bagley, 473
U.S. at 676 (1985) citing Brady, 373 U.S. at 87. Second, the evidence must have been suppressed by
the government, either willfully or inadvertently. See Agurs, 427 U.S. at 110. Third, the suppressed
evidence must be material to the guilt or innocence of the defendant. See Bagley, 473 U.S. at 676-78.
Evidence is deemed prejudicial, or material, only if it undermines confidence in the outcome of the
trial. Id. at 676. Brady has no good faith or inadvertence defense; whether nondisclosure was
negligent or by design, it is the responsibility of the prosecutor. See Gantt v. Roe, 389 F.3d 908, 912
(9th Cir. 2004). Moreover, the rule encompasses evidence "'known only to police investigators and
not to the prosecutor.'" See Strickler v. Greene, 527 U.S. 263, 280-81 (1999) quoting Kyles v.
Whitley, 514 U.S. 419, 438 (1995). In order to comply with Brady, therefore, "'the individual
prosecutor has a duty to learn of any favorable evidence known to the others acting on the
government's behalf in this case, including the police.'" Id. quoting Kyles, 514 U.S. at 437.
ii. Court of Appeal Opinion
Petitioner first raised this claim in his state habeas petition. Resp. Exh. N. The California
Court of Appeal, citing People v. Romero, 8 Cal. 4th 728, 737 (1994), found that Petitioner failed to
establish a prima facie case for relief on this ground. Resp. Exh. L at 2.
iii. Discussion
Petitioner’s claim lacks merit. The Ed-Green robbery took place on February 24, 2007, and
this case went to the jury on March 13, 2007. Resp. Exh. A5 at 1078. Assuming for the sake of
17

1
2
3
4
5
6
7
8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

argument that the prosecution was aware of the existence of surveillance camera footage and any
accompanying photos from the Ed-Green robbery before the end of Petitioner’s trial, such evidence
would be favorable to Petitioner only if it could make the difference between conviction and
acquittal. See Bagley, 473 U.S. at 676. This is not such a case. The evidence is not material because,
even if it had been disclosed to the defense and used in as effective a manner as possible, there is not
a reasonable probability that the result of the proceeding would have been different. Id. at 682. A
review of the trial record indicates that the differences between the robberies defeated any inference
that the Ed-Green robbers were the same robbers charged in the instant offense. Moreover, the vague
similarities noted by Petitioner could match any number of robberies taking place in any location, and
paled in comparison to the specific similarities between the charged counts themselves. Likewise, in
denying Petitioner’s post-trial motion to disclose exculpatory evidence of other robberies that took
place in Oakland, the trial court noted that such evidence would have been “of limited value in
establishing a defense, in view of the overwhelming evidence of the similarities of the figures stated
on the surveillance tapes in this case.” Resp. Exh. B9 at 1472-73.
The court agrees with the trial court’s assessment of Petitioner’s claim. Petitioner was
apprehended following a high speed chase after being observed by a police officer running from a 7Eleven, and was linked to the instant robberies by the statements of two co-defendants. Resp. Exh. H
at 19-22. There is absolutely no evidence to suggest that the Ed-Green robbers were responsible for
the crimes with which Petitioner was charged. In view of the overwhelming evidence of Petitioner’s
guilt, the evidence that he claims was suppressed in violation of Brady (surveillance footage and
photos from the Ed-Green robbery) is not material because its disclosure would not have presented a
probability sufficient to undermine confidence in the outcome of the trial. See Bagley, 473 U.S. at
676; Benn, 283 F.3d at 1053. Accordingly, the California Court of Appeal’s rejection of Petitioner's
Brady claims was not contrary to or an unreasonable application of federal law. See 28 U.S.C. §
2254(d).
B. Confrontation Clause
Petitioner claims that the prosecution violated his right to confront and cross-examine
witnesses against him because the victims of counts 1, 3, 6 and 9 did not testify or appear at the trial.
18

1
2
3
4
5
6
7
8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22

Hab. Pet. at 10. This claim lacks merit. There is no clearly established Supreme Court authority
stating that a defendant’s right of confrontation requires the victims of an offense to participate in a
criminal prosecution by appearing in court or otherwise attending the trial.
C. Redaction of Co-Defendant’s Statement
Petitioner claims that the court and/or the prosecution committed misconduct by redacting a
portion of his co-defendant’s statement that was favorable to him before it was read into the record.
Hab. Pet. at 11. United States Supreme Court authority provides that, before a co-defendant’s
statement can be introduced into evidence against a non-testifying co-defendant, the statement must
be redacted to remove any reference to the nontestifying co-defendant. See Gray v. Maryland, 523
U.S. 185, 192 (1998). In accordance with this requirement, the trial court redacted a portion of Ray
III’s statement referencing a pair of camouflage pants seized from the family residence, which he
claimed belonged to Petitioner’s daughter (his sister), and not to Petitioner. Id. Resp. Exh. B8 at
1257. Petitioner claims that this evidence was exculpatory because it contradicted the prosecution’s
argument that the pants belonged to him. Hab. Pet. at 11. However, the trial court specifically
refused to allow Petitioner to choose to redact only inculpatory references, but not to redact
exculpatory references. Resp. Exh. B8 at 1256-57. The court fails to see how the trial court’s
adherence to the requirements set forth by the Supreme Court amounts to misconduct on the part of
either the court or the prosecution.
D. Reference to Petitioner’s Drug Use During Closing Argument
Petitioner claims that the prosecutor committed misconduct by telling the jury that the
“motive” for his crimes was “drug use,” and that such statements amount to improper argument in
violation of his constitutional rights. Hab. Pet. at 12.
i. Factual Background

23
24
25
26
27
28

In his closing argument, the prosecutor suggested that drug use was a partial motive for the
robberies:
The law also says, having a motive is a factor showing that the defendant is
guilty, what was he doing with all this money. When he got big money from the
Long’s Drugs, he bought a few cars, but the little money that he was getting, $60
here and there from the 7-Eleven[s], he was buying drugs. He was smoking
crack in the RV with his wife Tina, the Third, [i.e Ray III] who he turned on to
crack and his four year old would have to climb into the top camper so she
19

1
2
3
4
5
6
7
8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

wouldn’t be inhaling his crack smoke.
Resp. Exh. B9 at 1401.
ii. Legal Standard
Clearly established Supreme Court authority provides that a prosecutor’s improper
comments violate the Constitution only if they “so infected the trial with unfairness as to make the
resulting conviction a denial of due process.” See Darden v. Wainwright, 477 U.S. 168, 181 (1986)
(citations omitted).
iii. Discussion
Even assuming that the prosecutor’s statements during closing argument were improper, in
light of the totality of the evidence presented at trial, the court cannot say the prosecutor’s comments
tainted the verdict and deprived Petitioner of a fair trial. Moreover, any potential prejudice that may
have resulted from the prosecutor’s improper comments was cured by the court’s instruction to the
jury that the parties’ statements in their closing argument are not evidence. Resp. Exh. D at 15; see
Fields v. Brown, 503 F.3d 755, 787 (9th Cir. 2007) (jurors are presumed to follow the trial court’s
instructions). Viewing the record in its entirety, the prosecutor’s comments did not deprive Petitioner
of a fair trial. See Darden, 477 U.S. at 181.
E. Prior Convictions
Petitioner claims that the prosecutor committed misconduct by introducing “details and
circumstances” of two misdemeanor crimes that resulted in prior convictions. Hab. Pet. at 13.
Petitioner’s claim fails for lack of specificity. Petitioner fails to point out how these references
affected his case, and fails to identify where in the record evidence to support his claim can be found.
See James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (“Conclusory allegations which are not supported
by a statement of specific facts do not warrant habeas relief).
F. Suggestion That Petitioner Introduced His Son to Crack Cocaine
Petitioner claims that the prosecutor improperly accused him of turning his “18 year old son
on to smoking crack cocaine.” Hab. Pet. at 13.
The prosecutor, on cross examination, asked Petitioner whether it was true that when his son
turned 18, he turned him on to smoking crack. Resp. Exh. B8 at 1277. Petitioner answered that he
20

1
2
3
4
5
6
7
8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

did not. Id. The record reflects that a question was asked by the prosecutor and answered in the
negative by Petitioner. There was no accusation and the jury was not asked to draw an improper
inference. The court fails to see how this amounts to misconduct on the part of the prosecutor.
G. Improper Vouching
Petitioner claims that the prosecutor’s statement that a government witness was telling the
truth amounts to improper vouching. Hab. Pet. at 14.
Improper vouching can occur in a variety of circumstances, for instance: when the prosecutor
places the prestige of the government behind the witness by providing personal assurances of the
witness's veracity; where the prosecutor suggests that the testimony of government witnesses is
supported by information outside that presented to the jury; or where the prosecutor expresses an
opinion of the defendant's guilt or denigrates the defense as a sham, See United States v. Wright, 625
F.3d 583, 610 (9th Cir. 2010). “[V]ouching typically involves the prosecution bolstering the
testimony of its own witness.” Id. (citation omitted).
Petitioner refers the court to the prosecutor’s comments during closing argument regarding the
testimony of Larry Carrington, stating that Carrington testified truthfully and that his testimony was
believable. Resp. Exh. 9 at 1401-02. The statements identified by Petitioner do not amount to
vouching as the prosecutor did not make any personal assurances regarding the credibility of
Carrington’s testimony, but instead argued that the jury could infer that Carrington was telling the
truth based on the totality of the evidence presented. Viewing the record in its entirety, the court
finds no support for Petitioner’s argument that the government’s statements during closing argument
constituted improper vouching.
H. Referencing Facts That Were Not in Evidence
Petitioner contends that, during closing argument, the prosecutor made several references to a
pair of camouflage pants (seized from the family’s RV during the execution of a search warrant) that
did not belong to him, and claims that the comments were improper because they were based on facts
not in evidence. Hab. Pet. at 14.
Petitioner’s claim lacks merit. During his closing argument the prosecutor argued to the jury
that the camouflage pants seized from the RV did not fit Carrington or Melissa (Petitioner’s
21

1
2
3
4
5

daughter), but did fit Petitioner. Resp. Exh. B9 at 1426-27. The pants were admitted into evidence,
and the jury was familiar with the appearance of both Carrington (who testified) and Melissa (shown
in videotapes and photos). Resp. Exh B7 at 977-1076, B8 at 1311-12. The prosecutor’s comments
were not improper as they suggested to the jury that they should draw a reasonable inference based
on evidence that was properly before them.
I. Perjured Testimony

6

Finally, Petitioner contends that the prosecutor knowingly used perjured testimony to secure

7
8
9

the conviction, and deliberately suppressed evidence that would have impeached and refuted the
testimony against him. Hab. Pet. at 15.
Both of these claims fail for lack of specificity. See James, 24 F.3d at 26 (“Conclusory

11
For the Northern District of California

United States District Court

10

12

allegations which are not supported by a statement of specific facts do not warrant habeas relief).
IV.

Petitioner contends that the evidence was insufficient to support the enhancements imposed

13
14

for the personal use of a firearm and personal infliction of great bodily injury. Hab. Pet at 16-20.
A. Legal Standard

15

In Jackson v. Virginia, 443 U.S. 307, 316 (1979), the Supreme Court established the due

16
17
18
19
20
21
22
23
24
25
26
27
28

Illegal Sentence Enhancement

process standard by which federal courts review a habeas corpus petition challenging the sufficiency
of evidence for a state conviction. Due process requires that “no person shall be made to suffer the
onus of a criminal conviction except upon sufficient proof–defined as evidence necessary to convince
a trier of fact beyond a reasonable doubt of the existence of every element of the offense.” Id. at 316.
A state prisoner who alleges that the evidence in support of his state conviction cannot be fairly
characterized as sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt
states a federal constitutional claim that, if proven, entitles him to federal habeas relief. Id. at 321,
324.
A federal court reviewing a state court conviction does not determine whether it is satisfied
that the evidence established guilt beyond a reasonable doubt. See Payne v. Borg, 982 F.2d 335, 338
(9th Cir. 1993). The federal court “determines only whether, ‘after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential elements of
22

1
2
3
4
5
6
7
8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

the crime beyond a reasonable doubt.’” Id. quoting Jackson, 443 U.S. at 319. A court must apply the
Jackson standard “with explicit reference to the substantive elements of the criminal offense as
defined by state law.” See Chein v. Shumsky, 373 F.3d 978, 983 (9th Cir. 2004) (citation omitted).
Under the Jackson standard, a conviction may be supported by logical inferences from
circumstantial evidence, but the inferences cannot be merely speculative. See Sarausad v. Porter,
479 F.3d 671, 677 (9th Cir. 2007), rev’d on other grounds sub nom. Waddington v. Sarausad, 555
U.S. 179, 182 (2009); Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995). Where behavior is
consistent with both guilt and innocence, the burden is on the state to produce evidence that would
allow a rational trier of fact to conclude beyond a reasonable doubt that the behavior was consistent
with guilt; however, the “prosecution need not affirmatively rule out every hypothesis except that of
guilt.” See Sarausad, 479 F.3d at 678 (citation, quotations omitted).
After passage of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a federal
habeas court applies the standards of Jackson with an additional layer of deference. See Juan H. v.
Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). The Ninth Circuit has held that section 2254(d)(1) of
AEDPA applies to federal review of a state court’s sufficiency of the evidence determination under
Jackson. Id. at 1274-75. If the state court affirms a conviction under Jackson, the federal court must
decide whether the state court’s application of Jackson was objectively unreasonable. See Sarausad,
479 F.3d at 677-78. The Ninth Circuit has adopted guidelines for determining whether a state court
applied Jackson in an objectively unreasonable manner under section 2254(d)(1), which states as
follows:
(1) The focus of the inquiry is on the state court decision;
(2) Even with the deference due by statute to the state court's determinations, the
federal habeas court must look to the “totality of the evidence” in evaluating the
state court's decision;
(3) The failure of the state court to consider at all a key argument of the defendant
may indicate that its conclusion is objectively unreasonable; however, the paucity
of reasoning employed by the state court does not itself establish that its result is
objectively unreasonable;
(4) The failure of a state court to give appropriate weight to all of the evidence
may mean that its conclusion is objectively unreasonable; and
(5) The absence of cases of conviction precisely parallel on their facts does not, by
itself, establish objective unreasonableness.
23

1
2
3
4
5
6
7

Sarausad, 479 F. 3d at 678 (citation omitted).
In contrast, section 2254(d)(2) does not apply to Jackson cases because the federal court does
not decide whether the state court unreasonably determined disputed facts. Sarausad, 479 F.3d at
678. Rather, the court must decide whether the state court unreasonably applied the Jackson test. Id.
at 683. Accordingly, a federal court evaluates a challenge to a state conviction on insufficient
evidence grounds under section 2254(d)(1) rather than (d)(2). Id. at 678.
B. California Law
i. Personal Use of a Firearm

8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16

California Penal Code section 12022.53(b) provides that any person who personally uses a
firearm when committing an enumerated felony, shall be punished by an additional and consecutive
term of imprisonment in the state prison for 10 years. See Cal. Penal Code § 12022.53(b). The
firearm need not be operable or loaded for this enhancement to apply. Id. Circumstantial evidence
alone is sufficient to support a finding that an object used by a robber was a firearm, so where a
defendant commits a robbery by displaying an object that looks like a gun, the defendant’s conduct
and words may provide sufficient circumstantial evidence to support the enhancement. See People v.
Law, 195 Cal. App. 4th 976, 983 (2011).
ii. Great Bodily Injury

17
18
19
20
21
22
23
24
25
26
27
28

California Penal Code section 12022.7 provides that “[a]ny person who personally inflicts
great bodily injury on any person other than an accomplice in the commission of a felony or
attempted felony shall be punished by an additional and consecutive term of imprisonment in the
state prison for three years.” See Cal. Penal Code § 12022.7. Great bodily injury “means a
significant or substantial physical injury,” see Cal. Penal Code § 12022.7(f), and it is well settled that
this is a factual, not a legal determination. See People v. Escobar, 3 Cal. 4th 740, 749 (Cal. 1992).
C.

Discussion
i. Factual Background

With respect to the firearm enhancements imposed on counts 16 and 17, the victim of the
robbery described two men wearing hoods and masks that entered his store. Resp. Exh. H at 10. The
taller of the two men was holding what appeared to be a shotgun, and the shorter one held a grey or
24

1
2
3
4
5
6
7
8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

silver handgun. Id. The taller man pointed the shotgun at the victim and demanded that he open the
register and hand over his wallet. Id. Petitioner was later identified as the man with the shotgun. Id.
With respect to the firearm and great bodily injury enhancements imposed on count 22, the
victim stated that two men entered the store, one holding what appeared to be a short-barrel shotgun,
and ordered him to open the register. Id. at 12. The gunman demanded the victim’s wallet, and when
the victim resisted, struck him in the forehead with the weapon, drawing blood and gashing his skin
to the bone, and knocking him to the floor. Id. The robbers then fled with the register cash drawer
and the wallet. Id.
With respect to the firearm and great bodily injury enhancements imposed on count 23, the
victim described three men that entered his store, one with a shotgun and another with a handgun. Id.
at 13. The robber with the shotgun was described as white, in his 30's and about 5 feet, 7 inches tall.
Id. The robber with the shotgun ordered the victim to open the register, but he was unable to do so.
Id. After he finally got the register open, the robber with the shotgun struck the victim in the head
with the shotgun, opening a wound that required eight staples to close. Id. at 13. Co-defendant Larry
Carrington testified that he committed the robbery with Petitioner and his son, and identified
Petitioner from the surveillance video as the person with the shotgun. Id.
ii. Analysis
Petitioner claims that the evidence was insufficient to support the enhancements because a
shotgun was never recovered, and the victims’ varying descriptions of the robbers did not definitively
identify him as the assailant who possessed the shotgun or inflicted great bodily injury. Hab. Pet. at
16-17. These claims lack merit. A firearm enhancement under Cal. Penal Code § 12022.5 is
appropriate where the defendant menacingly displays a firearm during the course of a robbery. See
Ballard v. Estelle, 937 F.2d 453, 457 (9th Cir. 1991). The fact that a shotgun was never recovered is
immaterial, as circumstantial evidence alone is sufficient to support the enhancement under
California law. See Law, 195 Cal. App. 4th at 983. Moreover, there is no doubt that, under the facts
presented at trial, the jury reasonably determined that the victims suffered great bodily injury.
Petitioner correctly points out that the victims’ varying descriptions of the robbers do not
definitively identify him as the robber with the shotgun, or the robber who inflicted great bodily
25

1
2
3
4
5
6
7

injury. However, in counts 16 and 17, Petitioner was identified by the victim as the man with the
shotgun, and in count 23, Carrington identified Petitioner from surveillance footage as the robber
with the shotgun. Resp. Exh. H at 10, 13. Both witnesses were subject to cross examination, and
counsel was able to attack the victim’s identification, and expose Carrington’s motive to lie. Resp.
Exh B3 at 469-475, B7 at 1031-32. The jury was presented with arguments from both sides, and
assessed the witnesses credibility accordingly. Based on the evidence presented at trial, and in view
of the double layer of deference required by Jackson and AEDPA, the court cannot grant relief.
Viewing the evidence in the light most favorable to the prosecution, the record supports the

8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

conclusion that any rational trier of fact could have found the essential elements to support the
enhancements beyond a reasonable doubt. See United States v. Herrera-Gonzalez, 263 F.3d 1092,
1095 (9th Cir. 2001). The state court’s determination that there was sufficient evidence to support
the jury’s finding of true on the firearm and great bodily injury enhancements was not contrary to, or
an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d)(1); Jackson
v. Virginia, 443 U.S. 307, 316 (1979).
V.

Failure to Adequately Redact Codefendant’s Statements
Petitioner claims that admission of a co-defendant’s (Ray III) redacted statement violated his

Sixth Amendment right of confrontation. Hab. Pet. at 21.
A. Court of Appeal Opinion
The California Court of Appeal addressed this claim as follows:
Ray III did not testify at trial. A transcript of Ray III's statements to police, in
which he admitted his participation in the majority of the charged offenses, was
read to the jury with all references to Ray Jr. redacted. The trial court required
that the redaction be done in such a fashion as to “eliminate all references, not
only to the nondeclarant's name, but also to the nondeclarant's very existence,”
relying on Richardson v. Marsh (1987) 481 U.S. 200 (Richardson) and People v.
Fletcher (1996) 13 Cal. 4th 451 (Fletcher). The jury was also instructed that it
could consider Ray III's statements only as to him, and not as to Ray Jr.
Ray Jr. asserts that the redaction “proved futile” and remained “powerfully
incriminating.” He contends that he was deprived of his Sixth Amendment right
of confrontation by introduction of this evidence. (Crawford v. Washington
(2004) 541 U.S. 36 (Crawford); Bruton, supra, 391 U.S. 123.) We disagree.
Appellant's argument is that, despite removal of any reference in Ray III's
statement to any other person, the statements “linked with other evidence
produced at trial,” including the surveillance videos revealing the participation of
other culprits, made the redactions ineffective. The very argument that appellant
26

1
2
3
4
5
6
7
8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

makes here, however, has been rejected by the United States Supreme Court in
Richardson, supra, 481 U.S. 200, and by our own Supreme Court in Fletcher,
supra, 13 Cal. 4th 451-cases upon which appellant relies.
A defendant is deprived of his Sixth Amendment right of confrontation when the
facially incriminating confession of a nontestifying codefendant is introduced at
their joint trial, even if the jury is instructed to consider the confession only
against the codefendant. (Bruton, supra, 391 U.S. 123.) In Richardson, the
Supreme Court refused to extend what it termed the “narrow exception” created
in Bruton to the “almost invariable assumption of law that jurors follow their
instructions” when told to consider evidence only for limited purposes.
(Richardson, supra, 481 U.S. at 206-207.) In the case before the Court, defendant
Marsh and two other individuals were jointly charged with assault and multiple
murders. A confession given by one codefendant was redacted to omit all
reference to Marsh, and further to omit all indication that anyone other than the
codefendant and the then fugitive third defendant participated in the crime. (Id. at
203.) The confession as redacted was not incriminating on its face, but became so
only when linked with evidence introduced later at trial, in this case the
defendant's own testimony. The Supreme Court granted certiorari after the Court
of Appeal granted Marsh's petition for habeas corpus, holding that a trial court
must assess the confession's “inculpatory value” under Bruton by examining not
only the face of the confession, but also all of the evidence introduced at trial, and
that Marsh's own trial testimony placing her in a vehicle with the codefendant
near the time of the offense made the codefendant's statement “powerfully
incriminating” to Marsh, thereby violating the Confrontation Clause. (Id. at
205-206.)
The Supreme Court rejected the “evidentiary linkage” or “contextual implication”
approach to Bruton questions adopted by the Court of Appeal, noting the
problems which would arise if such a rule were adopted. Among the difficulties
created would be an inability to comply with the “Bruton exception” by means of
redaction, and the impossibility of predicting the admissibility of a confession in
advance of trial, presumably requiring a trial judge to assess at the end of each
trial whether, in light of all of the evidence, a nontestifying codefendant's
confession has been so “powerfully incriminating” that a new, separate trial is
required for the defendant. (Richardson, supra, 481 U.S. at 208-209.) Rejecting
this approach, and the position Ray Jr. urges here, the Court held, “While we
continue to apply Bruton where we have found that its rationale validly applies
[citation], we decline to extend it further. We hold that the Confrontation Clause
is not violated by the admission of a nontestifying codefendant's confession with a
proper limiting instruction when, as here, the confession is redacted to eliminate
not only the defendant's name, but any reference to his or her existence.” (Id. at
211; see also Gray v. Maryland (1998) 523 U.S. 185, 195 [“Richardson placed
outside the scope of Bruton's rule those statements that incriminate
inferentially”].)
Our own Supreme Court in Fletcher declined to draw a bright line rule on the
efficacy of redaction which retains references to a coparticipant in the crime while
removing the coparticipant's name, requiring a determination on a case by case
basis whether the nondeclarant defendant's constitutional right of confrontation is
violated. (Fletcher, supra, 13 Cal. 4th at 456-457.) “[T]he efficacy of this form
of editing must be determined on a case-by-case basis in light of the other
evidence that has been or is likely to be presented at the trial. The editing will be
deemed insufficient to avoid a confrontation violation if, despite the editing,
reasonable jurors could not avoid drawing the inference that the defendant was
the coparticipant designated in the confession by symbol or neutral pronoun.” (Id.
27

1
2
3
4
5
6
7
8
9

11
For the Northern District of California

United States District Court

10

12

at 456.) The Court, however, distinguished such a situation from the rule
annunciated in Richardson that admission of a codefendant's confession at a joint
trial only violates the codefendant's rights under the Confrontation Clause where
the redacted confession is not only “powerfully incriminating” but also “facially
incriminating” of the nondeclarant defendant. (Id. at 455; see also People v.
Garcia (2008) 168 Cal. App. 4th 261, 281-282.) A rule of “contextual
implication” raising constitutional confrontation issues arises only when internal
reference in the statement, taken with other evidence, would result in a situation
“where any reasonable juror must inevitably perceive that the defendant on trial is
the person designated by a pronoun or neutral term in the codefendant's
confession.” (Fletcher, supra, 13 Cal. 4th at 466, 468.) The redaction of Ray III's
statement here created no such issue.
Ray Jr. also contends that admission of Ray III's statement was erroneous under
Crawford, supra, 541 U.S. 36. In Crawford the Supreme Court held that
admission of testimonial hearsay statements against a defendant violates the Sixth
Amendment confrontation clause when the declarant is not subject to
cross-examination. (Id. at 53-54.) Testimonial hearsay includes statements taken
in police interrogations. (Id. at 52.) Nonetheless, admission of such statements
violates a defendant's confrontation rights only to the extent they are admitted
“against” him. The redacted statement contained no evidence against defendant
and thus cannot implicate the confrontation clause. “The same redaction that
‘prevents Bruton error also serves to prevent Crawford error.’ [Citation.]” (People
v. Stevens (2007) 41 Cal. 4th 182, 199.)

13 Resp. Exh. B6 at 1164.
14

B. Discussion

15

Petitioner alleges that the state court’s decision was contrary to clearly established federal

16 law, claiming that, despite the redaction, he was “directly implicated” by Ray III’s statement in two
17 specific instances. Hab. Pet. at 23. First, a portion of the statement that was read to the jury left in a
18 reference to Ray III’s “dad” as the person driving the RV that Ray III and Carrington used to flee the
19 scene of one of the robberies and; second, the discussion regarding a defense motion for a mistrial
20 contained a lengthy reference to Petitioner. Resp. Exh. B8 at 1194, 1258. The second instance
21 referred to by Petitioner was not part of Ray III’s statement and took place outside the presence of the
22 jury, therefore it does not implicate Petitioner’s right to confrontation. The first instance arguably
23 violates the Sixth Amendment because, even though it doesn’t demonstrate that Petitioner
24 participated in the robbery itself, the jury could infer guilt based on the fact that he was the driver of
25 the getaway vehicle. Resp. Exh. B8 at 1194, see Gray v. Maryland, 523 U.S. 185, 195-97 (1998).
26

However, in light of the relatively minor nature of the reference, any potential harm that it

27 caused was cured by the court’s instruction that statements made by Ray III could only be considered
28 against him and not against Petitioner. Resp. Exh. A5 at 1151; see Fields v. Brown, 503 F.3d 755,
28

1
2
3
4
5
6
7
8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

787 (9th Cir. 2007) (jurors are presumed to follow the trial court’s instructions). On this record, the
court finds that any error was harmless because it did not have “a substantial and injurious effect or
influence in determining the jury's verdict.” See Brecht v. Abrahamson, 507 U.S. 619, 638 (1993).
VI.

Ineffective Assistance of Counsel
Petitioner alleges that both trial and appellate counsel were ineffective in several different

ways. Hab. Pet. at 24-30.
A. Legal Standard
In order to succeed on an ineffective assistance of counsel claim, the Petitioner must satisfy
the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984), which requires
him to show deficient performance and prejudice. Deficient performance requires a showing that
trial counsel's representation fell below an objective standard of reasonableness as measured by
prevailing professional norms. See Wiggins v. Smith, 539 U.S. 510, 521 (2003). To establish
prejudice, Petitioner must show a reasonable probability that “but for counsel's unprofessional errors,
the result of the proceeding would have been different.” See Strickland, 466 U.S. at 694. If a
Petitioner cannot establish that defense counsel’s performance was deficient, it is unnecessary for a
federal court considering a habeas ineffective assistance claim to address the prejudice prong of the
Strickland test. See Siripongs v. Calderon, 133 F.3d 732, 737 (9th Cir. 1998).
The Due Process Clause of the Fourteenth Amendment guarantees a criminal defendant the
effective assistance of counsel on his first appeal as of right. See Evitts v. Lucey, 469 U.S. 387, 391405 (1985). Claims of ineffective assistance of appellate counsel are reviewed according to the
standard set out in Strickland, 466 U.S. 668 (1984). See Miller v. Keeney, 882 F.2d 1428, 1433 (9th
Cir. 1989). Appellate counsel does not have a constitutional duty to raise every nonfrivolous issue
requested by defendant. See Jones v. Barnes, 463 U.S. 745, 751-54 (1983). The weeding out of
weaker issues is widely recognized as one of the hallmarks of effective appellate advocacy. Id. at
751-52.
Because the California Supreme Court summarily denied the petition with no explanation, the
court must conduct an independent review of the record to determine whether its decision denying
Petitioner’s claims of ineffective assistance of counsel was objectively unreasonable. See Delgado,
29

1
2
3
4
5
6
7
8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

223 F.3d at 982.
B. Ineffective Assistance of Trial Counsel
i. Confrontation Clause
Petitioner claims that, in counts 1, 3, 6, 9, and 19, trial counsel should have objected, on
confrontation clause grounds, to the prosecution’s failure to call the victims of those crimes as
witnesses. Hab. Pet. at 25.
As discussed supra in section III B., there is no clearly established Supreme Court authority
stating that a defendant’s right of confrontation requires the victims of an offense to participate in a
criminal prosecution by appearing in court or otherwise attending the trial. In some situations, such
as murder trials, it would not even be possible. Counsel was not ineffective for failing to raise a
meritless argument. See Moormann v. Ryan, 628 F.3d 1102, 1110 (9th Cir. 2010) quoting Boag v.
Raines, 769 F.2d 1341, 1344 (9th Cir.1985) (“Failure to raise a meritless argument does not
constitute ineffective assistance.”). Accordingly, the state court’s decision denying relief on this
claim was not objectively unreasonable.
ii. Failure to Confer with Petitioner
Petitioner claims that trial counsel failed to confer with him, keep him informed, and “elicit
matters of defense.” Hab. Pet. at 26. Specifically, Petitioner contends that counsel only met with him
twice, each time for less than 15 minutes. Id. In the first meeting, they discussed a plea offer of 28
years, which Petitioner declined, and in the second meeting counsel asked Petitioner not to testify, a
request which he ignored. Id. Even assuming that counsel’s performance was deficient for failing
adequately to confer with Petitioner and to keep him reasonably informed of developments in his
case, Petitioner’s claim fails for lack of prejudice because he cannot demonstrate a reasonable
probability that the result of the proceeding would have been different had counsel met with him
more often. See Strickland, 466 U.S. at 694. The state court’s decision denying relief on this claim
was not objectively unreasonable.
iii. Failure to Investigate All Defenses of Facts and Laws
Petitioner states that several prosecution witnesses provided favorable, exculpatory testimony
describing a robber as either “a black guy,” “black,” or “hispanic,” all descriptions that did not fit
30

1
2
3
4
5
6
7
8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

him. Hab. Pet. at 26., Resp. Exh. B5 at 653, B6 at 757, 760, 762. Petitioner claims that trial counsel
“never objected, or asked for a limiting instruction to bar the prosecution from admitting evidence
that was NOT cross-admissible on the issue of identity,” and that counsel failed to object on grounds
of relevance-thereby affecting the outcome of the trial. Hab. Pet. at 26. The allegation is vague and
conclusory, as Petitioner fails to identify how he was prejudiced by counsel’s failure to take these
steps. See James, 24 F.3d at 26 (“Conclusory allegations which are not supported by a statement of
specific facts do not warrant habeas relief”). The state court’s decision denying relief on this claim
was not objectively unreasonable.
iv. Failure to Subject the Prosecution’s Case to Adversarial Tests
At the preliminary hearing, a note was found in Petitioner’s sock which he claims was a
signed admission of guilt authored by a co-defendant. Hab. Pet. at 27. Petitioner states that trial
counsel was aware that someone other than him claimed authorship of the note, and argues that
counsel was ineffective for failing to bring the signed confession to the jury’s attention as evidence of
his innocence. Id.
The facts underlying this claim are as follows: On cross-examination the prosecutor asked
Petitioner whether he wrote the note that was taken from his sock. Resp. Exh. 8 at 1312-13.
Petitioner testified that he did not write the note, and that someone handed it to him on the prison bus
on the way to the hearing. Id. at 1313. He stuffed it in his sock and did not get the chance to read it
before it was taken from him. Id. The prosecutor read the note to Petitioner, and he confirmed its
accuracy. Id. at 1313-15. The note appeared to be directed toward his son, Ray III, asking him to
“stay strong”and to tell the investigators “it wasn’t me.” Id. at 1314. The note also said, “If you do
take this, I will owe you forever,” and “all you got to do is not to tell them cops anything.” Id. at
1314-15. When asked by the prosecutor, Petitioner specifically denied that he wrote the letter to his
son. Id. at 1315.
Petitioner alleges that a co-defendant (presumably his son) signed “an admission of guilt” that
he authored the note, and that trial counsel was aware of this signed confession yet failed to introduce
it into evidence. Hab. Pet. at 27. Petitioner has failed to produce any evidence, either here or in his
state habeas petition, that would support his bare allegation that someone other than he claimed to
31

1
2
3
4
5
6
7
8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

have written the note. Petitioner’s unverifiable and unsupported claim cannot support habeas relief.
See James, 24 F.3d at 26 (“Conclusory allegations which are not supported by a statement of specific
facts do not warrant habeas relief.”). The state court’s decision denying relief on this claim was not
objectively unreasonable.
v. Failure to Call Christina Miller As a Witness
Petitioner claims that trial counsel was ineffective for calling no witnesses on his behalf. Hab.
Pet. at 27. The court previously determined that this claim was exhausted as to only one witness,
Christina Miller. Order, April 15, 2011.
In his state habeas petition, Petitioner alleges that Miller, one of the victims in count 3, told
police that all three men were African-American. Hab. Pet., Exh. H at 29. Petitioner claims that her
testimony would have helped the defense because her description of the robbers was inaccurate,
therefore counsel should have compelled her attendance at trial. Id.
In support of this contention, Petitioner directs the court’s attention to the appendix, however
no appendix was attached. Id. On this basis alone, the court Petitioner’s claim lacks merit.
However, assuming for the sake of argument that Petitioner’s account of Miller’s statement is
accurate, counsel’s strategic decision not to call her as a witness was nevertheless reasonable, as there
is no indication from this statement alone that her testimony would have been favorable to the
defense, and could in fact have been harmful to his defense. Defense counsel is empowered to make
such strategic decisions, so long as they are reasonable and informed. See Jennings v. Woodford, 290
F.3d 1006, 1014 (9th Cir. 2002). Miller’s description of the robbers could have been inaccurate for
any number of reasons, including the fact that she was being terrorized at gunpoint, because the
robbers were wearing masks, or because her memory was faulty. Resp. Exh. H at 3. Alternatively,
she could have been a particularly sympathetic victim. Petitioner fails to explain how exactly
Miller’s testimony would have helped his defense, aside from the observations that as to this one
charge, the victim’s description was shaky and uncertain. “A convicted defendant making a claim of
ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been
the result of reasonable professional judgment.” Strickland, 466 U.S. at 690. The state court’s
decision denying relief on this claim was not objectively unreasonable.
32

1
2
3
4
5
6
7
8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

vi. Failure to Prepare for Sentencing
Petitioner argues that trial counsel provided ineffective assistance at sentencing by (1) failing
to contest the restitution alleged in counts two and three; and (2) for failing to argue mitigating facts.
Hab. Pet. at 27.
Petitioner’s claim lacks merit. There is no clearly established Supreme Court precedent by
which to evaluate counsel's performance in noncapital sentencing cases. See Davis v. Grigas, 443
F.3d 1155, 1158 (9th Cir. 2006); Cooper-Smith v. Palmateer, 397 F.3d 1236, 1244 (9th Cir. 2005).
In any case, Petitioner’s argument that the restitution amount set by the court is greater than
the reported loss fails, as it is apparently based on the store manager’s statement provided to police.
The probation officer’s report indicates that the total amount of loss suffered by Long’s Drugs was
roughly $50,000, and the amount attributable to Petitioner from the robbery in counts two and three is
more than $30,000. Resp. Exh. A5 at 1227. Petitioner offers no evidence to show that the probation
officer’s report is incorrect. Based on this calculation, counsel had no basis for objecting, as the
court’s order that Petitioner pay restitution in the amount of $25,000 was entirely reasonable.
Additionally, Petitioner fails to identify the mitigating factors that counsel should have
presented. Counsel argued for a middle-term sentence, based on the fact that there were no
aggravating factors, scant evidence of planning, and nothing to indicate that Petitioner forced the
others to participate. Resp. Exh. B9 at 1478-79. Petitioner presented his own mitigating arguments in
his prepared statement to the court. Id. at 1479. Finally, the court, in arriving at the sentence,
considered all the factors in mitigation, in particular the fact that Petitioner’s criminal history was
relatively minor, and that he may have been influenced by drugs and alcohol. Id. at 1480. There is no
indication that counsel failed to present any mitigating factors that were requested by Petitioner.
vii. Failure to Object to the Imposition of a Knife Use Enhancement
Petitioner contends that trial counsel was ineffective for failing to object to the imposition of
an enhancement for the use of a deadly weapon (knife) in counts 26 and 27, because it was not pled
in the information. Hab. Pet. at 28.
The factual basis for this claim is incorrect as the information alleged a firearm enhancement
in counts 26 and 27, not a knife use enhancement. Resp. Exh. A4 at 930-932. The firearm
33

1
2
3
4
5
6
7
8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

allegations were both found true by the jury. Resp. Exh. A5 at 1114-15.
viii. Failure to Object to Improper Identification Evidence
Petitioner claims that trial counsel was ineffective for not objecting when the victim in counts
16 and 17 identified him in court after failing to do so in a pretrial lineup. Hab. Pet. at 29.
Stephen McManus was a customer in the South Shore Liquor Store when it was robbed on
June 23, 2006. Resp. Exh. H at 10. McManus was unable to identify Petitioner in separate pretrial
police lineups, but identified him in court based on his complexion, the shape of his face, the area
around his eyes, the color of his hair, and his height. Id.
Petitioner argues that McManus, after failing to identify him in pretrial lineups, should not
have been permitted to make an in-court identification. Hab. Pet. at 29. Petitioner’s claim lacks
merit. Trial counsel made a reasonable strategic decision not to try and exclude McManus’s
testimony and instead to impeach his in-court identification with prior non-identifications. Defense
counsel is empowered to make such strategic decisions, so long as they are reasonable and informed.
See Jennings v. Woodford, 290 F.3d 1006, 1014 (9th Cir. 2002). Counsel’s performance in this
regard was not deficient. Even assuming that counsel’s performance was deficient for failing make
this objection, Petitioner’s claim fails for lack of prejudice because he cannot demonstrate a
reasonable probability that the result of the proceeding would have been different had Petitioner not
been allowed to make the in-court identification. See Strickland, 466 U.S. at 694.
C. Ineffective Assistance of Appellate Counsel
i. Illegal Lineup
Petitioner claims that appellate counsel was ineffective for failing to challenge “the illegal
lineup held without counsel present.” Hab. Pet. at 30. The essence of this claim is that Petitioner’s
Sixth Amendment right to counsel was violated when the Oakland police conducted a physical lineup
before Petitioner was appointed counsel. Hab. Pet. Exh. H at 11, Exh. I at 35.
Petitioner’s claim lacks merit, as he was not positively identified from any pretrial lineup.
Therefore there was no in-court identification that was tainted by a prejudicial police lineup
procedure. See United States v. Wade, 388 U.S. 218, 227 (1967). Even if an in-court identification
was the product of a prejudicial lineup, trial counsel could reasonably have concluded that the in34

1
2
3
4
5

court identification was not harmful to the defense because it could be impeached by the witness’s
prior non-identification. Because the claim raised by Petitioner lacks merit, appellate counsel’s
failure to raise the issue on appeal was neither deficient nor prejudicial under the Strickland standard.
See Rhoades v. Henry, 638 F.3d 1027, 1036 (9th Cir. 2011). Appellate counsel was not ineffective
for failing to challenge the lineup.
ii. Failure to Challenge Counts With Enhancements

6

Petitioner claims that appellate counsel was ineffective for failing to challenge count 22, in

7
8
9

11
For the Northern District of California

United States District Court

10

which he was sentenced to sixteen years for robbery, three years for a great bodily injury
enhancement, and ten years for the personal use of a firearm enhancement. Hab. Pet. Exh. H at 9.
Specifically, Petitioner claims that he should have been exonerated by victim testimony describing
men of a different race than him. Id.
Petitioner’s contention lacks merit. On direct appeal, appellate counsel specifically

12
13
14
15
16
17
18
19
20

challenged the sufficiency of the evidence to support Petitioner’s conviction on count 22 based on the
lack of credible identification evidence. Resp. Exh. E at 34. The California Court of Appeal
acknowledged that there was no direct evidence of Petitioner’s identity as one of the robbers, and that
his guilt was established by circumstantial evidence. Nevertheless, the court rejected this claim,
finding that under the totality of the circumstances the evidence circumstantially established
Petitioner’s identity as the robber, notwithstanding the fact that witnesses were unsure of the race of
the two men. Resp. Exh. H at 42-50. Accordingly, there is no basis for Petitioner’s claim that
appellate counsel was ineffective for failing to challenge this count.
iii. Confrontation Clause Violation

21

Petitioner claims that appellate counsel was ineffective for failing to raise a confrontation

22
23
24
25
26
27
28

clause challenge to those counts where the victims failed to appear. Hab. Pet. Exh. I at 35. This
claim was already presented as a claim of prosecutorial misconduct, supra, in section III B., and as a
claim of ineffective assistance of trial counsel, supra, in section VI B.i. The claim fails here for the
same reasons.
VII.

Altered Trial Testimony
Petitioner claims that the California Court of Appeal’s opinion misstated the testimony that
35

1
2
3
4
5
6
7
8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

was presented at trial. Hab. Pet. at 31. In describing the July 10, 2006 robbery of a 7-Eleven store in
Oakland, the court wrote, “witnesses were unsure of the race of the two men.” Resp. Exh. H at 46.
The record reflects that victim Francis Shelley described the first robber as being hispanic or black,
based upon the amount of skin visible between his bandana and sunglasses. Resp. Exh. B5 at 653.
Victim Rita Thapa described the first robber as six foot tall and black, or “something like that.” Resp.
Exh. B6 at 757. However, he had a handkerchief covering his face and was wearing gloves and a hat.
Id. at 757-58.
Petitioner’s argument lacks merit. A review of the record indicates that neither witness was
positive of their identification due to the fact that the robbers obscured their appearance with
bandanas, gloves, hats, and hoodies. Resp. Exh. B5 at 653, B6 at 758-59. The language used in the
state court opinion was entirely consistent with the witness’s testimony that the robber was a darkskinned individual of unknown race.
VIII. Modified Jury Instruction
Petitioner contends that the trial court erred by giving a modified version of CALCRIM 3515.
Hab. Pet. at 32.
A. Factual Background
In rejecting this claim, the California Court of Appeal stated as follows:
Both appellants contend that the court erred in instructing the jury using a
modified form of CALCRIM 3515, which advised the jurors that “Each of the
counts charged in this case is a separate crime. You must consider each count
separately and return a separate verdict for each one. In doing so, you must
impartially compare and consider all the evidence that was received throughout
the entire trial.” The court made clear it was giving this modification in lieu of
requested a prosecution instruction on consideration of similar offenses to show
identity under Evidence Code section 1101.
Both appellants insist that instructing the jury to consider “all the evidence”
impermissibly allowed the jury to consider evidence on some counts that was not
otherwise cross-admissible as evidence of guilt on other counts. Ray Jr. asserts
that this permitted the jury to improperly convict him on at least some charges
using inadmissible modus operandi evidence and Ray III argues that the
instruction was prejudicial as to him in that it “effectively relieved the
prosecution of its burden to prove each element of an offense beyond a
reasonable doubt.” Ray Jr. also complains that the court's instruction “left the
jury with no guidance on proper consideration of evidence of similar acts to
show pattern, intent, or identity (People v. Ewoldt, (1994) 7 Cal. 4th 380) and
left the jury to speculate as to the sufficiency of additional counts to show
identity.”
36

1
2
3
4
5
6
7
8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

There is no record that Ray III interposed any objection to the instruction. The
record reflects objection only by counsel for Ray Jr. Having failed to raise this
claim below, Ray III may not now assert it on appeal. (See, e.g., People v. Stitely
(2005) 35 Cal. 4th 514, 546; Eisenberg et al., Cal. Practice Guide: Civil Appeals
and Writs (The Rutter Group 2008) ¶ 8:229, p. 8-155.) As to Ray Jr., we find
that his claim of error is forfeited by his failure to seek any limiting instruction
on use of the evidence, either at the time the evidence was received, or in the
final instructions to the jury.
Ray Jr. focused, both in his briefs and in oral argument, on the question of
whether the evidence adduced at trial was properly cross-admissible under
Evidence Code section 1101, subdivision (b), and the criterion for admissibility
and consideration of modus operandi evidence to circumstantially establish his
guilt on those counts where there was no direct evidence connecting him to the
offense. In challenging cross-admissibility of evidence on the various counts,
Ray Jr. relies primarily on authorities addressing standards for introduction of
evidence of uncharged misconduct (People v. Lewis (2001) 25 Cal. 4th 610;
People v. Ewoldt, supra, 7 Cal. 4th 380; People v. Balcom (1994) 7 Cal. 4th 414;
People v. Rivera (1985) 41 Cal. 3d 388). Ray Jr.'s arguments, however, ignore
the significance of the context in which the evidence was presented to this
jury-trial of properly joined multiple offenses. (§ 954; see People v. Ochoa
(1998) 19 Cal. 4th 353, 409.)
Here there was no request by appellant to sever any of the multiple charged
counts, and no evidence of any uncharged misconduct was presented to the jury.
Rather, appellant was charged by a single information with a series of offenses,
all of the “same class of crimes or offenses,” which the prosecution argued were
“connected together in their commission,” and which appellant has never
contended were inappropriately joined. Offenses may be connected together in
their commission even though they “ ‘do not relate to the same transaction and
were committed at different times and places [and] against different victims.’
[Citations.]” (Alcala v. Superior Court (2008) 43 Cal. 4th 1205, 1218. Further, it
is not required that evidence be cross-admissible before jointly charged offenses
may be tried together before the same trier of fact. (§ 954.1; People v. Zambrano
(2007) 41 Cal. 4th 1082, 1129, fn. 10, disapproved on another ground in People
v. Doolin (2009) 45 Cal. 4th 390, 421, fn. 22.)
As discussed post, we do not agree with Ray Jr.'s contention that modus operandi
was the only basis for cross-admissibility of evidence presented or the only
manner in which evidence of other crimes was relevant. Nevertheless, we will
assume, without deciding, that not all of the robberies reflected common marks
sufficient to establish identity circumstantially, and that if some of the offenses
had been separately charged or uncharged, would not be sufficiently “similar” to
meet the standards for admissibility. Evidence of uncharged misconduct is
admissible to prove identity when “the uncharged misconduct and the charged
offense ... share common features that are sufficiently distinctive so as to support
the inference that the same person committed both acts.” (People v. Ewoldt,
supra, 7 Cal. 4th at p. 403; see also People v. Thornton (1974) 11 Cal. 3d 738,
756 [overruled on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684,
fn. 12; inference depends upon the presence of distinctive “marks” that are
“shared by the uncharged and charged crimes”].)
Ray Jr. was on notice, however, from the time of the prosecutor's opening
statement that she intended to argue cross-admissibility but made no request for
a limiting instruction on consideration of the evidence, either during the
presentation of the prosecution case or after. “Under the doctrine of ‘limited
37

1
2
3
4
5
6
7
8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16

admissibility’ [citation], certain evidence may be admissible for one purpose or
against one party and inadmissible for another purpose or against another party.
Because it cannot be excluded, an objection to its admissibility will be futile.
Counsel is entitled only to an instruction to the jury, informing them of the
limited purpose for which the evidence may be considered, and the fact that it
went in without limitation is unappealable unless the instruction was requested.
[Citations.]” (3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, § 382,
p. 474.) Evidence Code section 355 provides: “When evidence is admissible as
to one party or for one purpose and is inadmissible as to another party or for
another purpose, the court upon request shall restrict the evidence to its proper
scope and instruct the jury accordingly.” (Italics added.) Under Evidence Code
section 355, a limiting instruction must be requested. If not, it is deemed waived
as an appellate issue. (People v. Boyer (2006) 38 Cal. 4th 412, 465.) Ray Jr.
requested no instruction restricting the jury's consideration of cross-admissibility
of evidence to particular factor or factors, and he cannot now complain that the
court failed to do so.
Our Supreme Court has held that “[t]he trial court has no sua sponte duty to give
a limiting instruction on cross-admissible evidence in a trial of multiple crimes.”
(People v. Maury (2003) 30 Cal. 4th 342, 394; see also People v. Falsetta (1999)
21 Cal. 4th 903, 924-925 [no sua sponte duty to instruct the jury as to the
admissibility or use of other sex crimes evidence offered under Evidence Code
section 1108 and no duty to edit defendant's partially incorrect instruction];
People v. Collie (1981) 30 Cal. 3d 43, 64 [no duty to give sua sponte limiting
instruction on evidence of uncharged prior assaults on victim].) A narrow
exception to this rule has been recognized in the “‘occasional extraordinary case
in which unprotested evidence of past offenses is a dominant part of the evidence
against the accused, and is both highly prejudicial and minimally relevant to any
legitimate purpose.’” (People v. Rogers (2006) 39 Cal. 4th 826, 864 [quoting
People v. Collie, supra, 30 Cal. 3d at p. 64].) Since the evidence presented here
was directly relevant to the legitimate purpose of proving elements of charged
offenses, this is not such an “extraordinary case.”

17 Resp. Exh. H at 54-56 (emphasis added).
18

B. Legal Standard

19

The formulation of jury instructions is a question of state law and is not cognizable in habeas

20 proceedings. See Estelle, 502 U.S. at 67-68. A faulty jury instruction will constitute a violation of
21 due process only where the instruction by itself infects the entire trial to such an extent that the
22 resulting conviction violates due process. See Hendricks v. Vasquez, 974 F.2d 1099, 1106 (9th Cir.
23 1992) citing Cupp v. Naughten, 414 U.S. 141, 147 (1973). Whether a constitutional violation has
24 occurred will depend upon the evidence in the case and the overall instructions given to the jury. See
25 Duckett v. Godinez, 67 F.3d 734, 745 (9th Cir. 1995). Where a given jury instruction is ambiguous, a
26 reviewing court must determine whether there is a “reasonable likelihood” that the jury was misled.
27 See Murtishaw v. Woodford, 255 F.3d 926, 967 (9th Cir. 2001).
28 ///
38

C. Discussion

1

Petitioner argues that the court’s modification of CALCRIM 3515 deprived him of a fair trial

2
3
4

because the instruction, as modified, failed to provide the jury with any guidance as to how to
properly consider evidence of other crimes to show identity. Hab. Pet. at 32-34, Resp. Exh. B at 59.
Petitioner’s argument lacks merit. The state court answered this precise question in the

5
6
7
8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

negative, concluding that, under California law, “the trial court has no sua sponte duty to give a
limiting instruction on cross-admissible evidence in a trial of multiple crimes.” Resp. Exh. H at 28.
Moreover, there is no clearly established law providing that a state court violates due process by
instructing a jury that they may consider evidence that is admissible on other counts to establish
pattern, intent, identity, or modus operandi, as cross admissible to establish that person’s guilt on
other offenses that have been appropriately joined in the same charging document. Petitioner fails to
identify, and the record does not reflect, any instance where the jury may have applied the modified
version of CALCRIM 3515 in such a way as to convict Petitioner of offenses based on evidence that
was otherwise inadmissible, or upon a lowered standard of proof. See Gibson v. Ortiz, 387 F.3d 812,
822 (9th Cir. 2004) (finding constitutional error where the jury is instructed that they can convict
based on a preponderance of the evidence standard) overruled on other grounds by Byrd v. Lewis,
566 F.3d 855, 866 (9th Cir. 2009). Viewed in the context of the jury instructions and the record as a
whole, the trial court's giving of CALCRIM 3515 did not violate due process. See Estelle, 502 U.S.
at 72. Accordingly, the state court's decision was not contrary to or an unreasonable application of
clearly established federal law, as determined by the United States Supreme Court. See 28 U.S.C.
§ 2254(d).
IX.

Sufficiency of the Evidence
As limited by the court’s April 18, 2012 Order, Petitioner challenges the sufficiency of the

evidence in counts 2/3, 8/9, 15, 18/19, 20, 22, and 25. Hab. Pet. at 36-38.
A. Legal Standard
As set forth in Section IV, supra, a federal court reviewing a state court conviction does not
determine whether the evidence established guilt beyond a reasonable doubt, but determines only
“whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier
39

1
2
3
4
5
6
7
8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

of fact could have found the essential elements of the crime beyond a reasonable doubt.” See Jackson,
443 U.S. at 319.
B. State Court Opinion
The state court, applying the Jackson standard, examined the entire record in a light most
favorable to the judgment, and determined that, under the totality of the circumstances, the evidence
established Petitioner’s identity as one of the robbers in the challenged counts. Resp. Exh. H at 44.
C. Discussion
There was no direct evidence that Petitioner participated in the robberies as to the challenged
counts, but the prosecution was able to convince the jury of his guilt through circumstantial evidence.
Petitioner argues that this evidence was insufficient to prove his guilt because the crimes did not
share a similar modus operandi, and the varying descriptions provided by the victims did not
establish his identity as one of the robbers. Hab. Pet. at 36-38. In support of his argument, Petitioner
notes the following: In counts 2 and 3, the store manager described two of the robbers as black and
one as white; in counts 8 and 9, the clerk testified that he thought one of the robbers was white; in
count 15, the victim identified one of the two robbers as white by the color of his eyes; in count 20,
the store clerk described the two robbers as either white or hispanic; in count 22, the victim stated
that one of the two robbers was hispanic or black; and in count 25, the clerk identified both robbers as
white based on their speech and the color of the skin around their eyes. Hab. Pet. at 37-38.
Petitioner’s reliance on the victims’ inability to consistently identify the race of the robbers is
misplaced. As Petitioner himself notes, the “suspects were unidentifiable because the suspects wore
various clothing and disguises,” which included hoodies, masks, and bandanas. Hab. Pet. at 36. As
such, there is no reason that the victims should have been able to conclusively identify Petitioner as
one of the robbers. However, the prosecution was able to present evidence of the similarity between
the various robberies without limitation, therefore the jury was able to consider the evidence
presented as to all counts in deciding whether a specific count had been proven beyond a reasonable
doubt. Resp. Exh. H at 28.
Based on the totality of the evidence presented at trial, a rational trier of fact could have easily
concluded that Petitioner was one of the robbers that committed the offenses described in the
40

1
2
3
4
5
6
7
8
9

11
For the Northern District of California

United States District Court

10

12

challenged counts. Petitioner was arrested fleeing from the scene of a convenience store robbery with
his son in a stolen Honda, after taking the cash drawer and cigarettes. Resp. Exh. H at 48. Petitioner
admitted to this robbery and to some others, and inferentially admitted that he knew who was
responsible for the other robberies. Id. The jury also heard evidence that Petitioner attempted to
dissuade Carrington from testifying against him, and sought to have his son falsely exculpate him.
Id. The robberies were primarily of convenience stores, and the items taken were usually money,
cigarettes, and lottery tickets. Id. at 28. Surveillance footage revealed similar looking men wearing
similar clothing in each of the robberies, and Carrington identified Petitioner from surveillance
footage as one of the robbers in several of the uncontested counts. Id. at 47-48. Although the
robberies did not share an identical modus operandi, there were sufficient similarities between them
to allow a reasonable jury to conclude that Petitioner was one of the robbers that participated in the
challenged counts.
Viewing the evidence in the light most favorable to the prosecution, the record supports the

13
14
15
16
17
18
19

conclusion that a rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. See Herrera-Gonzalez, 263 F.3d at 1095. The state court’s determination that
there was sufficient evidence to support the jury’s verdict on the challenged counts was not contrary
to, or an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d)(1);
Jackson, 443 U.S. at 316.
X.

Petitioner challenges the admission of two sets of statements: (1) statements he made to an

20
21
22
23
24

Oakland police officer who transported him to the hospital, and later to the police station, following
his arrest; and (2) statements made to interviewing officers at the police station. Hab. Pet. at 40-41.
Petitioner claims that both sets of statements were coerced and obtained in violation of his rights
under Miranda. Hab. Pet. at 41.
Petitioner’s claim regarding the statements he made to the transporting officer is a restatement

25
26
27
28

Involuntary Statements

of his first claim, which was considered and rejected in Section I, supra. Petitioner’s claim regarding
the second set of statements is addressed below.
///
41

A. Factual Background

1

Sergeant George Phillips, a robbery investigator for the Oakland Police Department testified

2
3
4
5
6
7

at a pretrial hearing on the admissibility of both defendants statements to police. Resp. Exh. B1 at
13-102. Phillips testified that, after their arrest, both defendants were taken to the hospital and treated
for their injuries, and then transported to the Oakland Police Department. Id. at 20-21, 78. Petitioner
was placed in an interview room at 3:00 a.m, but his interview did not begin until 10:57 p.m. Id. at
21, 64. In the meantime, Petitioner was allowed to use the restroom, eat, and sleep. Id.
Investigators began the interview by eliciting background information from Petitioner before

8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16

reading him his Miranda rights. Id. at 95-96. After waiving his Miranda rights, Petitioner gave a
recorded statement in which he admitted to committing the 7-Eleven robbery for which he was
apprehended fleeing the scene, along with his son. Id. at 56, 58-59. After the recording was turned
off, Petitioner admitted that he was responsible for some, but not all of the other robberies. Id. at 61.
Shortly after this admission, Petitioner asked for a lawyer. Id. at 62. At this point investigating
officers stopped all questioning and gathered their materials to leave, but Petitioner kept
talking–blaming people in an area where he used to live on Pearl Street in Oakland for some of his
actions, and for making his actions look worse than they seemed. Id. at 62-63, 99.
Petitioner testified that investigating officers began the interview by informing him that he

17
18
19
20
21

was under arrest for robbery and was a suspect in numerous other robberies in Oakland. Id. at 117.
However, other than the 7-Eleven robbery in which he was apprehended with his son, Petitioner
denied telling investigators that he was involved in any of the other robberies, and did not admit to
making any statements after invoking his right to counsel. Id. at 119-121.
The trial court noted that there was no issue with regard to the Miranda admonition itself. Id.

22
23
24
25
26
27

at 129. The court went on to find that the statements made by Petitioner, both before and after the
invocation of his right to counsel, were all admissible because the earlier statements were made while
the Miranda waiver was in effect, and the latter statements were spontaneous remarks that were not
made in response to interrogation. Id. at 129.
///

28
42

B. Legal Standard

1

The requirements of Miranda are set forth in Section I B., supra, and are "clearly established"

2
3
4

federal law for purposes of federal habeas review under 28 U.S.C. § 2254(d). See Juan H., 408 F.3d
at 1271; Jackson, 364 F.3d at 1009.
C. Discussion

5

Petitioner contends that his statements were rendered involuntary because investigating

6
7
8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20

officers exerted “psychological pressure” by holding him in an interview room for “at least 20 hours”
before reading him his Miranda rights, and keeping him “incommunicado and isolated from family,
friends, and his lawyer.” Resp. Exh. N, Hab. Pet. at 40. Petitioner’s claim lacks merit. In cases
involving psychological coercion, “the pivotal question ... is whether, in light of the totality of the
circumstances, the defendant's will was overborne when the defendant confessed.” See Ortiz v.
Uribe, 671 F.3d 863, 869 (9th Cir. 2011) (citations, quotations omitted). Although Petitioner was
detained for close to 20 hours before he was interviewed, the record reflects that he was taken to the
bathroom 14 times, allowed to sleep, and was given food and water during that time. Resp. Exh. B1
at 64. Aside from background questions, no interrogation took place prior to Miranda warnings
being given. Resp. Exh. B1 at 95-96. Once Petitioner invoked his right to counsel, investigators
ceased all questioning, and the subsequent statements made by Petitioner were spontaneous and
unprompted, and not the product of interrogation. Id. at 62-63. Based on the totality of the
circumstances, Petitioner’s will was not overborne when he made the statements to investigating
officers. See Uribe, 671 F.3d at 869.
After an independent review of the record, the court finds that the state court decision denying

21
22
23
24
25
26
27
28

Petitioner’s challenge to the admission of his statements was not objectively unreasonable. See
Delgado, 223 F.3d at 982.
XI.

Cruel and Unusual Punishment
Petitioner claims that his sentence of 38 years and 4 months constitutes cruel and unusual

punishment. Hab. Pet. at 42. The Court of Appeal found that Petitioner forfeited this argument by
failing to raise it on direct appeal. Resp. Exh.L at 1. Notwithstanding Petitioner’s failure to raise the
issue on direct appeal, the court will exercise its discretion and reach the merits of his claim. See
43

1
2
3
4
5
6
7
8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Boyd, 147 F.3d at 1127.
B. Legal Standard
Outside of the capital punishment context, the Eighth Amendment prohibits only sentences
that are extreme and grossly disproportionate to the crime. See United States v. Bland, 961 F.2d 123,
129 (9th Cir. 1992) quoting Harmelin v. Michigan, 501 U.S. 957, 1001 (1991). Such instances are
“exceedingly rare” and occur in only “extreme” cases. See Lockyer v. Andrade, 538 U.S. 63, 72-73
(2003); Rummel v. Estelle, 445 U.S. 263, 272 (1980). So long as a sentence does not exceed statutory
maximums, it will not be considered cruel and unusual punishment under the Eighth Amendment.
See United States v. Mejia-Mesa, 153 F.3d 925, 930 (9th Cir. 1998).
C. Discussion
Petitioner contends that, in light of his relatively minor criminal history, his sentence is cruel
and unusual in that he will serve 32 years in prison before he will become eligible for parole. Hab.
Pet. at 42.
Petitioner’s claim lacks merit. Although he received a severe sentence, “outside the context
of capital punishment, successful challenges to the proportionality of particular sentences will be
exceedingly rare.” See Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994) quoting Solem v.
Helm, 463 U.S. 277, 289-90 (1983). Here there is no basis for finding that Petitioner’s sentence is
grossly disproportionate to his offense. Petitioner was convicted of 21 counts of robbery with
enhancements for use of a firearm and inflicting great bodily injury. Over a period of over 13
months, Petitioner and his family engaged in a violent crime spree robbing a variety of establishments
in the East Bay, that only came to an end following a dangerous, high speed chase with Oakland
police officers while fleeing the scene of their last robbery. Petitioner occupied a position of
leadership and exerted a great deal of influence over the other participants, which included his son
and his daughter–both minors. The trial court properly weighed the aggravating and mitigating
factors before sentencing Petitioner to a term of imprisonment that was within the statutory
maximum. Resp. Exh. B9 at 1480-81. The aggregate of the consecutive sentences imposed was 67
years. Based upon Penal Code section 1170.1(a), one-third of those 67 years was imposed to be
served consecutive to the sentence imposed on Count 22 for a total term of 38 years and 4 months.
44

1
2

Under these circumstances, Petitioner’s claim that his sentence constitutes cruel and unusual
punishment fails, regardless of whether it is procedurally barred.
CONCLUSION

3
4
5
6
7
8
9

For the foregoing reasons, the Court DENIES the Petition for Writ of Habeas Corpus as to all
claims. A certificate of appealability will not issue. Reasonable jurists would not “find the district
court’s assessment of the constitutional claims debatable or wrong.” See Slack v. McDaniel, 529 U.S.
473, 484 (2000). Petitioner may seek a certificate of appealability from the Court of Appeals. The
Clerk shall enter judgment in favor of Respondent and close the file.
IT IS SO ORDERED.

YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

11
For the Northern District of California

United States District Court

10 DATED: June 6, 2013

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
G:\PRO-SE\YGR\HC.10\Ray,Jr.1582.hc.md.ygr.wpd

45