Warzek v. Chavez

Filing 8

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, ***Civil Case Terminated. Signed by Judge Phyllis J. Hamilton on 5/29/2013. (pjhlc3, COURT STAFF) (Filed on 5/29/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MICHAEL WARZEK,

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Petitioner,

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No. C 10-2632 PJH

v.

ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS

FRANK X. CHAVEZ, Warden,

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For the Northern District of California

United States District Court

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Respondent.
_______________________________/

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Petitioner Michael Warzek, a California prisoner currently incarcerated at Sierra

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Conservation Center in Jamestown, California, filed a petition for a writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. The court issued an order to show cause on August 20,

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2012. Respondent Frank X. Chavez filed an answer on October 12, 2012, and Warzek

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filed a traverse on November 28, 2012. The court determines that the matter is suitable for

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decision without oral argument, and DENIES the petition for the reasons set forth below.

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BACKGROUND
A.

Factual Summary

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The following factual summary is taken directly from the opinion of the court of

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appeal affirming the judgment and conviction. Answer, Ex. C (People v. Warzek, No.

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H031218 (Cal. Ct. App. Dec. 17, 2008)).

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A jury convicted Warzek of aggravated sexual assault upon a child under 14 (counts

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1 and 2), lewd act upon a child 14 or 15 (count 3), lewd act upon a child under 14 by force

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or fear (counts 4, 5 and 6), and possession of child pornography (count 7).

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The victim in this case was Warzek’s daughter. The acts underlying counts 1

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through 6 occurred when the victim was 10 through 14 or 15 years old. The victim testified

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as to the acts. Warzek testified and denied committing the acts. As to one incident,

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Warzek testified that he was in church at the time of the incident and two witnesses testified

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that they believed Warzek was attending church at the time of the incident.
The victim testified that she saw pornography on Warzek’s computer and knew

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pornography. A computer expert testified that he had located 1,984 images of child

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pornography on Warzek’s computer that were intentionally downloaded from websites such

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as “underage.admirers” and “erotica.teensex.” He added that he had found most of the

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photographs in the user-created file named “X.” He identified five exhibits of which each

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displayed two of the photographs he had found. The trial court admitted the exhibits into

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For the Northern District of California

about Warzek’s computer file named “X,” which, Warzek had told her, contained

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United States District Court

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evidence. Kathy M., the victim’s mother and Warzek’s former wife, testified that she had

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seen Warzek looking at pornography on his computer and once saw him trembling and

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exclaiming “agoo gaga” while viewing a picture of a naked girl who was approximately the

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victim’s age.

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B.

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Procedural History
On October 16, 2006, a six day jury trial in the case against Warzek commenced in

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Santa Clara County Superior Court. On November 13, 2006, the jury returned verdicts

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finding Warzek guilty of all the charged offenses. On February 5, 2007, the superior court

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entered judgment and sentenced Warzek to fifty years to life in prison. Warzek appealed to

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the California Court of Appeal, which affirmed his conviction on December 17, 2008.

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Warzek filed a petition for review in the California Supreme Court which denied review on

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March 23, 2009. Warzek filed the instant petition on June 15, 2010.
ISSUES PRESENTED

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Warzek raises the following claims for federal habeas relief:1

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Although the August 20, 2012, order to show cause identified only the due
process issues raised by the petition, the briefs filed by the parties address all the
constitutional claims for habeas relief asserted by Warzek. The claims are therefore fully
submitted on the papers and the court reaches the merits of those claims here.
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(1) the state court’s admission of evidence that he viewed and possessed child
pornography violated his due process rights;
(2) the prosecution’s cross-examination of Warzek regarding his possession and

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viewing of child pornography violated his rights to due process and against self-

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incrimination;

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(3) the trial court’s denial of Warzek’s request to admit testimony from his former

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wife’s attorney from a related civil lawsuit pertaining to Warzek’s molestation of their

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daughter based on the attorney-client privilege violated Warzek’s rights to due process,

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compulsory process and confrontation;
(4) his trial counsel’s failure to object to the prosecution’s inquiries on cross-

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For the Northern District of California

United States District Court

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examination regarding his use of his computer in viewing child pornography violated his

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rights to due process and effective assistance of counsel; and

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(5) the cumulative effect of the violation of his constitutional rights as set forth in the
above four claims violated his due process rights.
STANDARD OF REVIEW
A district court may not grant a petition challenging a state conviction or sentence on

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the basis of a claim that was reviewed on the merits in state court unless the state court’s

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adjudication of the claim: “(1) resulted in a decision that was contrary to, or involved an

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

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Supreme Court of the United States; or (2) resulted in a decision that was based on an

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unreasonable determination of the facts in light of the evidence presented in the State court

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proceeding.” 28 U.S.C. § 2254(d). The first prong applies both to questions of law and to

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mixed questions of law and fact, Williams (Terry) v. Taylor, 529 U.S. 362, 407–09, (2000),

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while the second prong applies to decisions based on factual determinations, Miller-El v.

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Cockrell, 537 U.S. 322, 340 (2003).

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

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first clause of § 2254(d)(1), only if “the state court arrives at a conclusion opposite to that

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reached by [the Supreme] Court on a question of law or if the state court decides a case
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differently than [the Supreme] Court has on a set of materially indistinguishable facts.”

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Williams (Terry), 529 U.S. at 412-13. A state court decision is an “unreasonable application

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of” Supreme Court authority, falling under the second clause of § 2254(d)(1), if it correctly

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

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“unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. The

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federal court on habeas review may not issue the writ “simply because that court concludes

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in its independent judgment that the relevant state-court decision applied clearly

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established federal law erroneously or incorrectly.” Id. at 411. Rather, the application must

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be “objectively unreasonable” to support granting the writ. Id. at 409.
A state court’s determination that a claim lacks merit precludes federal habeas relief

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For the Northern District of California

United States District Court

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so long as “fairminded jurists could disagree” on the correctness of the state court’s

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decision. Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011) (citing Yarborough v.

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Alvarado, 541 U.S. 652, 664 (2004)). “[E]valuating whether a rule application [i]s

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unreasonable requires considering the rule’s specificity. The more general the rule, the

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more leeway courts have in reaching outcomes in case-by-case determinations.” Id. “As a

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condition for obtaining habeas corpus [relief] from a federal court, a state prisoner must

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show that the state court’s ruling on the claim being presented in federal court was so

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lacking in justification that there was an error well understood and comprehended in

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existing law beyond any possibility for fairminded disagreement.” Id.

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

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determination will not be overturned on factual grounds unless objectively unreasonable in

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light of the evidence presented in the state-court proceeding.” Miller-El, 537 U.S. at 340.

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Review under § 2254(d)(1) is limited to the record that was before the state court that

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adjudicated the claim on the merits. Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011).

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DISCUSSION
I.

Claim That Admission of Child Pornography Evidence Violated Due Process

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A.

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The admission of evidence is not subject to federal habeas review unless a specific

Legal Standard

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constitutional guarantee is violated or the error is of such magnitude that the result is a

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denial of the fundamentally fair trial guaranteed by due process. See Henry v. Kernan, 197

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F.3d 1021, 1031 (9th Cir. 1999); Colley v. Sumner, 784 F.2d 984, 990 (9th Cir.), cert.

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denied, 479 U.S. 839 (1986). The Supreme Court “has not yet made a clear ruling that

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admission of irrelevant or overtly prejudicial evidence constitutes a due process violation
sufficient to warrant issuance of the writ.” Holley v. Yarborough, 568 F.3d 1091, 1101 (9th

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For the Northern District of California

United States District Court

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Cir. 2009) (finding that trial court’s admission of irrelevant pornographic materials was

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“fundamentally unfair” under Ninth Circuit precedent but not contrary to, or an unreasonable

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application of, clearly established federal law under § 2254(d)).

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Under Ninth Circuit authority, a habeas petitioner bears a heavy burden in showing

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a due process violation based on an evidentiary decision. Boyde v. Brown, 404 F.3d 1159,

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1172, as amended on reh’g, 421 F.3d 1154 (9th Cir. 2005). Failure to comply with state

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rules of evidence is neither a necessary nor a sufficient basis for granting federal habeas

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relief on due process grounds. See Henry, 197 F.3d at 1031; Jammal v. Van de Kamp, 926

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F.2d 918, 919 (9th Cir. 1991). The due process inquiry in federal habeas review is whether

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the admission of evidence was arbitrary or so prejudicial that it rendered the trial

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fundamentally unfair. Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995); Colley, 784

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F.2d at 990. The admission of evidence violates due process only if there are no

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permissible inferences that the jury may draw from the evidence, in light of the court’s

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instructions. See Jammal, 926 F.2d at 920. “Even then, the evidence must ‘be of such

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quality as necessarily prevents a fair trial.’” Id. (quoting Kealohapauole v. Shimoda, 800

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F.2d 1463, 1465 (9th Cir. 1986), cert. denied, 479 U.S. 1068 (1987)).

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B.

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Warzek contends that his right to due process was violated by the admission of

Admission of Child Pornography

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pornographic photographs of young girls that were found on Warzek’s computer after his

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arrest. This claim does not warrant habeas relief because Warzek fails to demonstrate a

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due process violation, as discussed below. Warzek also argues that evidence of

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possession of child pornography was inadmissible under state law, Traverse at 12-13, but it

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is well-settled that federal habeas relief is unavailable for alleged errors in the interpretation

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or application of state law. See Swarthout v. Cooke, 131 S. Ct. 859, 861-62 (2011); Estelle

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v. McGuire, 502 U.S. 62, 67-68 (1991).
The court of appeal summarized the trial court’s evidentiary ruling as follows:

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For the Northern District of California

United States District Court

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During in limine proceedings, defendant unsuccessfully sought to
sever count 7. He then sought a ruling that the photographs found
on his computer were inadmissible if he pleaded guilty to count 7. He
argued that the photographs were not sufficiently probative to prove a
propensity to commit counts 1 through 6 because possession of child
pornography is an offense dissimilar to the offenses charged in
counts 1 through 6. And he argued that the photographs tended
toward being inflammatory and, thus, were highly prejudicial. The
trial court denied defendant’s request. It explained: “Let me just
indicate then in doing a [Evidence Code section] 352 analysis it
appears to me that the photographs, having looked at them, they do
appear to be qualifying evidence under [Evidence Code section]
1108, and whether otherwise be admissible weighs the prejudicial
impact-which[,] the way it usually works[,] is anything from the
prosecution is typically prejudicial for the defense, and I don’t mean
to be flip about that, but weighing the prejudicial impact versus the
probative value of these photographs, I do think that the prejudicial
value is not outweighed by the probative value, and under [Evidence
Code section] 1108 analysis I allow the photographs to be admitted.”
It later added: “When I look at them, the photographs, they do depict
what appears to be obvious young females in either nude poses or
engaged in acts of sexual activity. The charges here are not
dissimilar in that there is allegations that there was sexual conduct by
a person under the age of eighteen and that there was sexual
contact. [¶] It seems to me that the photographs are probative of
those issues, and let me indicate the court also looked at [specified
case law] on this area. [¶] Let me indicate . . . that would not-to
answer your question and the court’s [Evidence Code section] 352
analysis would not be disturbed by [pleading guilty to count 7]. Again
I think that it’s appropriate to allow them to come in.”

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Answer, Ex. C at 2-3.
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Warzek argues that if he had entered a plea of guilty or no contest to the

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misdemeanor charge in court 7, charging him with possession of matter depicting sexual

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conduct of a person under 18 years old, then any evidence of the pornographic images that

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were found on his computer would have been inadmissible because the probative value of

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those images was outweighed by the danger of undue prejudice under California Evidence

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Code section 352. Warzek’s claim fails for three reasons: there is no clearly established

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federal law recognizing a due process right against the admission of propensity evidence;

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there was no error by the trial court in admitting the evidence of child pornography; and any

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error in admitting this evidence was not prejudicial.

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For the Northern District of California

United States District Court

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1.

No Clearly Established Federal Law

First, the United States Supreme Court has left open the question of whether

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admission of propensity evidence violates due process. Estelle v. McGuire, 502 U.S. 62,

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75 n. 5 (1991). Based on the Supreme Court’s reservation of this issue as an “open

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question,” the Ninth Circuit has held that a petitioner’s due process right concerning the

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admission of propensity evidence is not clearly established as required by AEDPA. Alberni

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v. McDaniel, 458 F.3d 860, 866-67 (9th Cir. 2006); accord Mejia v. Garcia, 534 F.3d 1036,

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1046 (9th Cir. 2008) (reaffirming Alberni). Because the state court’s denial of this claim did

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not result in “a decision that was contrary to, or involved an unreasonable application of,

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clearly established Federal law,” habeas corpus relief is not available. See 28 U.S.C.

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§ 2254(d)(1).

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2.

Evidence Had Probative Value

Second, Warzek fails to demonstrate evidentiary error in light of the record which

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demonstrates that the trial court weighed the prejudicial impact against the probative value

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of the photographs depicting female children who were either naked in a sexually

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provocative pose, or were involved in oral copulation or sexual intercourse with an adult

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man. Answer, Ex. E (Reporter’s Transcript (“RT”)) at 21. As the Ninth Circuit held in

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United States v. LeMay, “the admission of prejudicial evidence, without more, cannot be

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unconstitutional.” United States v. LeMay, 260 F.3d 1018, 1026 (9th Cir. 2001), cert.
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denied, 534 U.S. 1166 (2002). In LeMay, the court of appeals considered a due process

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challenge to Federal Rule of Evidence 414, which permits the court to admit evidence of

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similar crimes in child molestation cases, to be considered on any matter to which it is

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relevant. In deciding whether the traditional ban on propensity evidence involves a

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fundamental conception of justice so as to rise to a level of constitutional magnitude, the

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court in LeMay reviewed historical evidence showing that courts have consistently allowed

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propensity evidence in sex-offense cases despite its general ban in other criminal

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prosecutions. Id. at 1025. The LeMay court noted that the balancing test of Federal Rule

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of Evidence 403, allowing the court to exclude relevant evidence if its probative value is
substantially outweighed by a danger of unfair prejudice or other reasons, applies to

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For the Northern District of California

United States District Court

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evidence of similar crimes under Rule 414. Id. at 1026. The Ninth Circuit upheld the

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constitutionality of Rule 414, reasoning that allowing propensity evidence under Rule 414

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does not violate fundamental ideas of fairness as long as the protections of Federal Rule of

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Evidence 403 remain in place so that district judges retain the discretion to exclude

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“potentially devastating evidence of little probative value.” LeMay, 260 F.3d at 1026.

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Here, Warzek does not challenge the constitutionality of the state evidentiary rules,

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but contends that the state court erred by holding that the child pornography evidence was

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admissible because the probative value of the evidence was substantially outweighed by

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the danger of undue prejudice, confusing the issues or misleading the jury under section

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352 of the California Evidence Code. California Evidence Code § 352 is nearly identical to

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Federal Rule of Evidence 403, which likewise acts as a safeguard, allowing the court to

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exclude evidence if its probative value is substantially outweighed by the substantial danger

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of undue prejudice, of confusing the issues, or of misleading the jury. Warzek fails to show

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that the evidence of child pornography had little or no relevance that was far outweighed by

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the potential for prejudice.

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A state court’s evidentiary ruling is not subject to federal habeas relief unless the

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ruling violates federal law, either by infringing upon a specific federal constitutional or

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statutory provision or by depriving the defendant of the fundamentally fair trial guaranteed
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by due process. Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995). The Ninth Circuit

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has held that the introduction of propensity evidence can amount to a constitutional

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violation only if its prejudicial effect far outweighs its probative value, where the evidence

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gives rise to no permissible inference. See LeMay, 260 F.3d at 1026 (citing McKinney v.

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Rees, 993 F.2d 1378 (9th Cir. 1993)). In McKinney, the court of appeals held, after

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considering the facts of that case as a whole, that character evidence was erroneously

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admitted to show propensity and was so prejudicial as to render the trial fundamentally

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unfair. In McKinney, the petitioner was tried for the murder of his mother, who was found

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with her throat slit. No murder weapon was identified, but the state court admitted evidence
that the petitioner owned a dagger-type Gerber knife that had been confiscated by police

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For the Northern District of California

United States District Court

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before the victim’s death; that the petitioner strapped a knife to his body while wearing

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camouflage pants; and that he used his knife to scratch the words “Death is His” on his

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closet door. The court of appeals found that that no permissible inferences could be made

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from this character evidence and that the evidence was not relevant.2 Id. at 1382-84. The

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court in McKinney then reviewed the record to determine whether the erroneously admitted

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propensity evidence “had a substantial and injurious effect or influence in determining the

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jury’s verdict.” Id. at 1387 (quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)

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(internal citations and quotation marks omitted)). The court concluded in McKinney that in

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light of the solely circumstantial evidence against the petitioner, the erroneous admission of

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the character evidence rendered the trial fundamentally unfair in violation of the due

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process clause. Id. at 1386.

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Unlike McKinney, where the propensity evidence at issue was irrelevant to proving

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that the petitioner was guilty of murder, images showing child pornography taken from

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Warzek’s computer were relevant to counts 1 through 6 charging him with sexual assault

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and lewd acts upon a child. The prosecutor sought to admit 29 images of young girls in

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By contrast, the court found that the evidence suggesting that the petitioner
owned a dagger-type Tekna knife at the time of the murder was relevant to the issue of
identity, and held that its admission did not violate the historically grounded rule against the
use of “other acts” evidence to prove character. McKinney, 993 F.2d at 1383-84 and n.7.
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nude poses or engaged in acts of sexual activity with an adult man, which the trial court

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found to be probative of the allegations that Warzek committed sexual acts against a

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female under the age of eighteen. RT at 45. To reduce the prejudicial impact of the

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photographs, the state court admitted only 10 of the 29 proffered images at trial, and

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admitted smaller 4" by 6" photographs rather than the 8 ½” by 11" photographs initially

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proffered by the prosecution. RT 40-41, 328-31; Answer, Ex. E, Vol. 12 (Oct. 25, 2006

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transcript) at 3-5.

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Warzek argues that the photographs had no probative value because there is no
similarity between the possession of child pornography and the charged felonies alleging
sexual conduct with a child. Traverse at 12 (citing People v. Branch, 91 Cal. App. 4th 274,

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For the Northern District of California

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285 (2001) (“ if the prior offenses are very similar in nature to the charged offenses, the

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prior offenses have greater probative value in proving propensity to commit the charged

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offenses”)). Warzek also argues that the prosecution failed to produce any evidence that

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mere possession of child pornography creates a propensity to engage in the alleged sexual

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conduct against a minor. The record demonstrates, however, that the prosecutor argued

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during in limine proceedings that the photographs were integral to show that Warzek had a

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“sexual orientation towards children.” RT 29. Based on this record, Warzek has not

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demonstrated that the evidence of child pornography was not relevant, or that its prejudicial

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value far outweighed its probative value, such that admission of the evidence rendered his

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trial fundamentally unfair.

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3.

No Prejudicial Error
a.

Victim’s Testimony

Even if the trial court erred in admitting the evidence of child pornography found on

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Warzek’s computer, any error was harmless under Brecht, 507 U.S. at 623. The admission

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of 10 photographs depicting pornographic images of young girls did not have a substantial

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and injurious effect or influence in determining the jury’s verdict in light of the entire trial

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record. The key prosecution witness was the victim who testified that her father, Warzek,

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molested her, starting when she was seven or eight years old. RT 61, 422. The record
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demonstrates that the victim was highly credible: she was close to her father and did not

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testify out of vengeance or anger, having told an investigator that she did not want Warzek

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to be “nailed,” but hoped he would receive the psychiatric help he needed. RT 67, 428-29.

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She admitted that she could not remember dates and did not remember all the incidents of

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sexual assault, but certain incidents stood out in her memory. RT 64-70.

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At trial, Warzek’s attorney tried to undermine the victim’s credibility by pointing out

child molestation on March 29, 2005, the victim asked the investigator, Officer Perea, if he

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was going to take her father to jail, commented that she didn’t want to break up her family,

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and told the officer that nothing sexual had ever happened between her and her father. RT

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For the Northern District of California

that she initially lied to the police. RT 845-846. When police first responded to the report of

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United States District Court

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246-250. The victim was taken to the San Jose Police Department, where she was

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interviewed by Officer Pineda, who testified that the victim described an incident on the

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Saturday before Easter. RT 350-353. The victim also told Officer Pineda that she didn’t

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want to cause problems between her parents, and that her father had been molesting her

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for about one year. RT 354. Officer Pineda arranged a pretext call for the victim to contact

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Warzek to talk about the recent incident. RT 357-358. The recording of the pretext call

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was played and admitted into evidence, and a transcript was provided to the jury during the

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playback. RT 360-61; Answer, Ex. F, Vol. 3 (transcript of pretext call).

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In October 2005, the victim was re-interviewed by an investigator for the district

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attorney’s office, Inspector Moreland. RT 415. The victim detailed to her eight incidents of

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molestation over the past six years, starting when she was in third grade, between seven

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and eight years of age. RT 422-423. In closing, the prosecutor pointed out that the victim

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admitted that she lied to the first officer, and noted that the victim testified that she did not

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want to live alone with her mother. RT 821-22; 824. The victim also testified that she told

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the second officer that the molestation had occurred for only one year but did not tell him

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everything because she just wanted to end the interview. RT 93; 824-825.

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Defense counsel questioned the victim’s credibility with respect to a particular
incident when she was 14 years old, that occurred around March 27, 2005, which was
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Easter Sunday. The victim testified that Warzek got into the victim’s bed in the morning,

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either on Saturday or Sunday when her mother was home, and initiated sexual contact with

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her. RT 85-87. The victim walked out of the room, and felt betrayed by Warzek who had

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promised that he would stop molesting her. RT 87. The victim realized that her father

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would not stop and, within days, told her mother in vague terms that Warzek was molesting

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her. RT 87-88. The victim’s mother thereafter called the police. RT 88-90. Warzek denied

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that this incident could have happened because on the morning of Easter Sunday, he

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participated in a bell choir at his church and was not even home. RT 555-61. Two church

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members corroborated his alibi for Easter Sunday morning from about 7:15 a.m when
rehearsal began, and during the rehearsal on the preceding Saturday from 10:00 a.m. to

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For the Northern District of California

United States District Court

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11:00 a.m. RT 516-22, 526-30.

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Defense counsel argued in closing that the victim told her mother and an investigator

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that this incident occurred on Easter Sunday when Warzek was at the church, and

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suggested that the victim later changed her story to include the possibility that it might have

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occurred on Saturday morning. RT 859-60. The prosecutor pointed out during rebuttal,

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however, that during the pretext call to Warzek on March 29, 2005, only a few days after

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the incident, the victim confronted Warzek about touching her on Saturday, thereby

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corroborating the victim’s trial testimony that the incident occurred either on Easter Sunday

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or the preceding Saturday morning. RT 873. See Answer, Ex. F, Vol. 3 (transcript of

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pretext call) at 9. Furthermore, during the pretext call, Warzek told the victim that he went

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into her bed on the morning of the incident because he was “frozen cold” from sleeping on

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the couch. Id. at 10. At trial, however, Warzek testified that he did not get into bed with the

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victim at all that weekend, either Saturday or Easter Sunday, even to warm up. RT 614,

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618. On this record, a jury reasonably could have believed the victim’s account of the most

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recent molestation incident over Warzek’s inconsistent statements about getting into the

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victim’s bed that weekend.

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Defense counsel also suggested that the victim was motivated to lie because her
mother, Kathy M., as guardian ad litem, tried to sue Warzek in an effort to get money that
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Warzek inherited from his father’s estate. RT 205, 210. Kathy M. testified that she

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“temporarily” dismissed her lawsuit sometime after receiving discovery requests and

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postponed the litigation to a future date. RT 206-208. In closing, the prosecution

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downplayed the defense theory that the victim fabricated the details of molestation because

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of the civil lawsuit that her mother filed, and argued that the victim did not want to live with

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her mother and had no motive to lie. RT 827, 839-840.

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The prosecution also argued that the victim’s testimony was corroborated by other

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evidence, primarily the victim’s pretext call to Warzek where he admitted that something

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happened “last Saturday,” though not of a sexual nature, referring to the most recent
molestation incident. RT 832. The prosecution also noted that the victim’s testimony was

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For the Northern District of California

United States District Court

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corroborated by her sexual assault response team (SART) exam, which the examining

12

physician’s assistant found to show indicia highly suggestive of penetrating injuries. RT

13

400, 836. The defense presented a rebuttal expert who disagreed with the prosecution’s

14

experts and opined that the results of the victim’s SART exam were not necessarily

15

indicative of sexual trauma. RT 641-644. The prosecution’s expert acknowledged that

16

there was a small possibility that the findings from the victim’s SART exam were normal

17

variations, but concluded that based on those findings, there was a significant degree of

18

likelihood that they were caused by penetrating trauma. RT 695. Although the results of

19

the victim’s SART exam were subject to differing interpretations, they were consistent with

20

the victim’s account of molestation.

21
22

b.

Warzek’s Testimony

Warzek testified on his own behalf, and concedes that the outcome of the trial

23

“essentially came down to an issue of credibility between [Warzek and the victim] as to

24

what happened.” Traverse at 14. In contrast to the victim’s credible account detailing

25

certain incidents of sexual conduct and assault and describing her emotional reactions, RT

26

61-87, Warzek categorically denied that he ever had sexual contact with the victim, and

27

admitted only to going into the victim’s bed to talk and cuddle with her, or tickle or poke her

28

to wake her up. RT 569-70, 614-16, 630. In particular, Warzek testified that he did not go
13

1

into the victim’s bed during the weekend of the most recent incident in March 2005. RT

2

614, 618. Warzek’s testimony was impeached, however, by his prior statement to the

3

victim during the pretext call that he went into her bed that morning because he was cold.

4

Answer, Ex. F, Vol. 3 at 10.

5

Warzek’s credibility was also damaged by his explanation for how the pornographic

6

images were saved on his computer. Warzek testified that he knew that there was some

7

child pornography on his computer, but that he was not aware that his computer had visited

8

child pornography sites. He explained that the sexual images of children were

9

automatically downloaded by the newsreader programs that were installed on his
computer. RT 581-98. However, a computer forensics expert for the prosecution who

11
For the Northern District of California

United States District Court

10

reviewed the filed on Warzek’s computer opined that most of the images showing child

12

pornography were not accidentally downloaded because they were saved in a folder

13

labeled “X” which was not automatically created by the software. RT 376. The expert also

14

testified that many of the images were accessed after the date of their original download.

15

RT 337-38. Based on his review of the evidence on Warzek’s computer, the expert

16

concluded that the images were not automatically or passively downloaded as Warzek

17

testified, but that Warzek intentionally downloaded the child pornography. RT 335.

18

In light of this record, the admission of the 10 pornographic images of children taken

19

from Warzek’s computer did not have substantial and injurious effect or influence in

20

determining the jury’s verdict. Therefore, any error in admitting those photographs was

21

harmless and did not violate Warzek’s right to due process.

22

II.

Right Against Self-Incrimination

23

A.

24

The Fifth Amendment provides that “[no] person . . . shall be compelled in any

Legal Standard

25

criminal case to be a witness against himself.” U.S. Const. amend. V. “A defendant who

26

testifies at trial waives his Fifth Amendment privilege and may be cross-examined on

27

matters made relevant by his direct testimony.” United States v. Black, 767 F.2d 1334,

28

1341 (9th Cir. 1985) (citing Brown v. United States, 356 U.S. 148, 154-155 (1958)). “The
14

1

privilege is waived for the matters to which the witness testifies, and the scope of the

2

‘waiver is determined by the scope of relevant cross-examination.’” Mitchell v. United

3

States, 526 U.S. 314, 321 (1999) (quoting Brown, 356 U.S. at 154-155). Fixing the extent

4

of cross-examination, in turn, is left to the discretion of the trial judge. Black, 767 F.2d at

5

1341 (citations omitted).

6

The scope of the waiver and the permissible cross-examination are not determined

Hearst, 563 F.2d 1331, 1340 (9th Cir. 1977). “Rather, the focus is on whether the

9

government’s questions are ‘reasonably related’ to the subjects covered by the defendant’s

10

testimony.” Id. “[A]n accused who takes the stand ‘may not stop short in his testimony by

11
For the Northern District of California

by what the defendant actually discussed during his direct testimony. United States v.

8

United States District Court

7

omitting and failing to explain incriminating circumstances and events already in evidence,

12

in which he participated and concerning which he is fully informed, without subjecting his

13

silence to the inferences to be naturally drawn from it.’” Johnson v. United States, 318 U.S.

14

189, 196 (1943) (quoting Caminetti v. United States, 242 U.S. 470, 494 (1917)).

15

B.

16

Warzek testified on his own behalf, and during his direct examination, he was not

Warzek’s Cross-Examination

17

asked about the child pornography found on his computer, and avoided any statements or

18

references to that subject matter. During cross-examination, the prosecutor asked Warzek

19

if he was familiar with about 14 different websites containing or advertising child

20

pornography that had been visited on his computer. RT 580-590. Warzek denied knowing

21

that his computer had been to those websites, except for one named

22

teenpinkvideos[dot]com, and testified that a software program automatically downloaded

23

the child pornography onto his computer. Defense counsel objected to the questions about

24

the pornographic images found on Warzek’s computer on the ground that the cross-

25

examination exceeded the scope of Warzek’s direct testimony; the trial court overruled the

26

objection. RT 602-610, 659-664. Warzek now seeks habeas relief on the ground that the

27

cross-examination exceeded the scope of his testimony on direct examination, and the

28
15

1

prosecutor’s improper questioning about the child pornography resulted in a due process

2

violation.

3

The state court rejected Warzek’s argument on appeal that the inquiries about the

4

child pornography on his computer exceeded the scope of his direct examination. The

5

state court found that the inquiries about the images found on his computer were directed

6

at Warzek’s testimony about the pretext call during which he asked the victim about the

7

illegal images on his computer. Answer, Ex. C. at 12. The state court also held that

8

because Warzek denied committing the sex offenses against the victim, he placed at issue

9

his propsensity to commit sex offenses, which the possession of child pornography tended

11
For the Northern District of California

United States District Court

10

to prove. Id. at 13.
The court of appeal erred in finding that the cross-examination was within the scope

12

of direct examination “given that defendant himself broached the subject via the recorded

13

telephone conversation in which defendant told the victim about illegal things on his

14

computer.” Answer, Ex. C at 12. The record demonstrates that Warzek did not testify

15

about the pretext call during his direct examination. In opposing defense counsel’s

16

objection to the scope of cross-examination, the prosecutor argued that the pretext call had

17

been previously admitted into evidence and that during the telephone call, Warzek asked

18

the victim to delete illegal things on his computer by clearing the hard drive. Answer, Ex. F,

19

Vol. 3 at 17. The prosecution contended that it was entitled to cross-examine Warzek on

20

matters to impeach his credibility, including evidence of moral turpitude, such as

21

possession of child pornography, and evidence that he asked his daughter to destroy

22

evidence. RT at 661-662. The trial court allowed the cross-examination because Warzek

23

made a general denial of the charges against him. RT 664. Warzek did not, however,

24

testify about the pretext call during his direct examination. See RT 549-570. The state

25

court therefore erred in finding that Warzek testified about discussing the computer files

26

with the victim during the recorded pretext call. The court need not consider whether this

27

error was prejudicial because the state court’s alternate ruling was not unreasonable or

28

contrary to clearly established federal law. See Wetzel v. Lambert, 132 S. Ct. 1195,
16

1

1198-2000 (2012) (habeas relief is not permitted “unless each ground supporting the state

2

court decision is examined and found to be unreasonable under AEDPA”).

3

As an alternate basis for finding that the trial court did not abuse its discretion in

4

allowing the cross-examination into the illegal computer files, the state court of appeal held

5

that Warzek put his propensity to committ sex offenses at issue by denying that he

6

committed the sex offenses. Answer, Ex. C at 13. This ruling by the state court was

7

neither contrary to, nor an unreasonable application of, clearly established federal law

8

governing the scope of waiver of the Fifth Amendment privilege.

9

In Mitchell, the Supreme Court, in holding that a guilty plea does not waive the
privilege against self-incrimination at sentencing, noted the well-established rule that a

11
For the Northern District of California

United States District Court

10

witness, in a single proceeding, may not testify voluntarily about a subject and then invoke

12

the privilege against self-incrimination when questioned about the details:

13
14
15
16
17
18
19

The justifications for the rule of waiver in the testimonial context are
evident: A witness may not pick and choose what aspects of a
particular subject to discuss without casting doubt on the
trustworthiness of the statements and diminishing the integrity of the
factual inquiry. As noted in Rogers [v. United States, 340 U.S. 367,
371 (1951)], a contrary rule “would open the way to distortion of facts
by permitting a witness to select any stopping place in the
testimony[.]” It would, as we said in Brown, “make of the Fifth
Amendment not only a humane safeguard against judicially coerced
self-disclosure but a positive invitation to mutilate the truth a party
offers to tell,” 356 U.S. at 156. The illogic of allowing a witness to
offer only self-selected testimony should be obvious even to the
witness, so there is no unfairness in allowing cross-examination when
testimony is given without invoking the privilege.

20
Mitchell, 526 U.S. at 322. In Rhoden v. Rowland, 10 F.3d 1457, 1461 (9th Cir. 1993), the
21
Ninth Circuit recognized that “‘a defendant may be found to have waived her right to refuse
22
to testify regarding prior bad acts . . . so long as [the testimony] is being offered for a
23
purpose reasonably related to a material issue raised in the defendant’s testimony on direct
24
examination.’” Id. (quoting United States v. Cuozzo, 962 F.2d 945, 948 (9th Cir. 1992)). In
25
Rhoden, the habeas petitioner argued that the trial court unconstitutionally prevented him
26
from testifying on his own behalf in a rape case by ruling that he could be cross-examined
27
about two pending rape charges even if he did not open the door to those charges under
28
17

1

direct examination. Where the petitioner proffered testimony that he “sincerely believed”

2

that the victim consented to sex, the Ninth Circuit held that the evidence of other rapes was

3

relevant to whether he had a reasonable, good faith belief that the victim consented. Id.

4

Accordingly, the court in Rhoden held that the trial court did not err by ruling that the

5

petitioner’s proposed testimony would open him to cross-examination concerning the other

6

rapes.

7

Warzek’s direct testimony denying that he ever had sexual intercourse or sexual

8

contact with the victim raised issues about his credibility and his propensity to commit sex

9

crimes against children. In particular, Warzek testified that one morning, he pulled the
covers off the victim’s bed to wake her up, and saw her wearing only underwear and a t-

11
For the Northern District of California

United States District Court

10

shirt, laying on a bloody feminine pad. RT 567. Warzek stated, “I don’t think that that’s

12

appropriate for me as a father to see my daughter like that,” and also referred to the victim

13

as “my precious child.” RT 567-568. By implying that he would not have inappropriate

14

sexual contact with his daughter, Warzek’s testimony put his sexual interest in children at

15

issue. See Hearst, 563 F.2d at 1341 (“Since appellant’s direct testimony raised an issue

16

about the nature of her conduct during the entire one and one-half years prior to her arrest,

17

the government’s questions about her activities, associations, and residences during the

18

interim year were more than ‘reasonably related’ to the subject matter of her prior

19

testimony.”).

20

Here, like the pending rape charges in Rhoden, Warzek’s possession of child

21

pornography was reasonably related to the subject matter of his direct testimony, where he

22

denied having any sexually inappropriate contact with the victim. Therefore, Warzek was

23

properly subjected to cross-examination on the presence of child pornography on his

24

computer, including questions about whether he was familiar with how many times his

25

computer visited those websites and how the images became saved on his computer. “The

26

scope of cross-examination in a criminal case is governed by the simple rule of whether the

27

questions propounded are designed to test sincerity and truthfulness or are ‘reasonably

28

related’ to the subject covered on direct.” United States v. Sturgis, 578 F.2d 1296, 1300
18

1

(9th Cir. 1978). Warzek has not demonstrated that his Fifth Amendment privilege against

2

self-incrimination was violated, or that the state court committed prejudicial error in violation

3

of his right to due process.

4

III.

Exclusion of Attorney-Client Privileged Communications

5

A.

6

“State and federal rulemakers have broad latitude under the Constitution to establish

Legal Standard

7

rules excluding evidence from criminal trials.” Holmes v. South Carolina,

8

547 U.S. 319, 324 (2006) (quotations and citations omitted); see also Montana v. Egelhoff,

9

518 U.S. 37, 42 (1996) (holding that due process does not guarantee a defendant the right
to present all relevant evidence). This latitude is limited, however, by a defendant’s

11
For the Northern District of California

United States District Court

10

constitutional rights to due process and to present a defense, rights originating in the Sixth

12

and Fourteenth Amendments. See Holmes, 547 U.S. at 324. “While the Constitution

13

prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or

14

that are disproportionate to the ends that they are asserted to promote, well-established

15

rules of evidence permit trial judges to exclude evidence if its probative value is outweighed

16

by certain other factors such as unfair prejudice, confusion of the issues, or potential to

17

mislead the jury.” Id. at 325-26; see Egelhoff, 518 U.S. at 42 (holding that the exclusion of

18

evidence does not violate the Due Process Clause unless “it offends some principle of

19

justice so rooted in the traditions and conscience of our people as to be ranked as

20

fundamental.”).

21

The Ninth Circuit has articulated a five-factor balancing test for deciding if the

22

exclusion of evidence violates the due process right to a fair trial or the right to present a

23

defense: (1) the probative value of the excluded evidence on the central issue; (2) its

24

reliability; (3) whether it is capable of evaluation by the trier of fact; (4) whether it is the sole

25

evidence on the issue or merely cumulative; and (5) whether it constitutes a major part of

26

the attempted defense. Chia v. Cambra, 360 F.3d 997, 1004 (9th Cir. 2004) (citing Miller v.

27

Stagner, 757 F.2d 988, 994 (9th Cir.), amended on other grounds, 768 F.2d 1090 (9th Cir.

28

1985)); Drayden v. White, 232 F.3d 704, 711 (9th Cir. 2000) (same). The court must also
19

1

give due weight to the state interests underlying the state evidentiary rules on which the

2

exclusion was based. See Chia, 360 F.3d at 1006; Miller, 757 F.2d at 995.

3

B.

4

Warzek claims that his right to due process and his Sixth Amendment rights to

Exclusion of Attorney’s Testimony

5

compulsory process and to confront witnesses were violated by the exclusion of testimony

6

based on invalid assertion of the attorney-client privilege where the privilege had been

7

waived. This claim does not warrant habeas relief.

8

The victim’s mother, Kathy M., testified that her attorney, Donald DeVries, filed a

testified that the lawsuit was filed on April 14, 2006, then was dismissed “temporarily.” RT

11
For the Northern District of California

guardian ad litem action against Warzek alleging claims on behalf of the victim. Kathy M.

10

United States District Court

9

205-206. On cross-examination, defense counsel asked Kathy M. whether she and

12

DeVries discussed refiling the lawsuit after Warzek’s criminal trial concluded, to which she

13

answered “maybe” and indicated that whether the civil case would be refiled “stands to be

14

determined.” RT 207- 208. Kathy M. also testified that when the lawsuit was dismissed,

15

DeVries told her that she “had enough stress right now and that we were going to postpone

16

this until a future date and if at all.” RT 208.

17

At a hearing outside the presence of the jury, defense counsel questioned DeVries

18

about the reasons for dismissing the civil lawsuit and the likelihood of refiling the civil action

19

after the conclusion of the criminal prosecution, which DeVries refused to answer on the

20

ground of attorney-client privilege. RT 539-543. The trial court upheld the assertion of the

21

privilege over defense counsel’s objection. RT 543-547. The court of appeal did not

22

consider whether the trial court erred by upholding the privilege, but concluded that even

23

assuming that error occurred, any error was harmless:

24
25
26
27
28

Defendant claims that the inability to question the attorney
prejudiced him as follows: “The prohibited examination was tailored to
show that [the former wife] was the ‘driving force’ behind the civil case
to obtain a money judgment against defendant, that [she] was using
her daughter to accomplish that goal, and that was the true motivation
behind the criminal case. This in turn would give substance to a claim
that [she] was getting her daughter to fabricate the events against
defendant so that [they] could have access to defendant’s
inheritance.”
20

1
2
3
4
5
6

But defendant had placed these issues before the jury.
Defendant’s former wife admitted that she authorized the civil suit
against defendant to reach his inheritance. And she refused to rule
out that the since dismissed suit would not be refiled after resolution
of the criminal proceeding. Her attorney’s testimony would have
added nothing to the import of her testimony. Defendant fails to and
cannot deny this reality.
Answer, Ex. C. at 14.
Warzek contends that Kathy M. had waived the attorney-client privilege with regard

against Warzek, including the reasons for dismissal and whether the lawsuit would be

9

refiled. Traverse at 22. Warzek also contends that the state court’s error in upholding the

10

privilege was prejudicial because the examination of DeVries was tailored to show that the

11
For the Northern District of California

to communications between herself and DeVries as to the subject matter of the civil lawsuit

8

United States District Court

7

true motivation behind the criminal case was Kathy M.’s goal of obtaining a money

12

judgment to access Warzek’s inheritance. Traverse at 25. Warzek contends that the case

13

against him came down to an issue of credibility between himself and the victim. Because

14

he was denied the opportunity to demonstrate weakness in Kathy M.’s or the victim’s

15

credibility, Warzek contends that this limitation on his ability to present a defense resulted

16

in a substantial and injurious effect on the outcome of the trial.

17
18

1.

No Clearly Established Federal Law Establishes Basis for Relief

First, Warzek fails to show that the state court’s decision was contrary to, or an

19

unreasonable application of, clearly established federal law because there is no Supreme

20

Court precedent recognizing a right to breach the attorney-client privilege. In Swidler &

21

Berlin v. United States, 524 U.S. 399, 408 n. 3 (1998), the Supreme Court reserved the

22

question of whether “exceptional circumstances implicating a criminal defendant’s

23

constitutional rights might warrant breaching the [attorney-client] privilege.” See also

24

Murdoch v. Castro, 609 F.3d 983, 995-96 (9th Cir. 2010) (en banc) (“the Supreme Court

25

has not clearly established whether and in what circumstances the attorney-client privilege

26

must give way in order to protect a defendant’s Sixth Amendment confrontation rights”)

27

(plurality opinion).

28
21

1
2

2.

No Due Process Violation

Second, even if Kathy M. waived the attorney-client privilege and the state court

3

erroneously excluded DeVries’ testimony in violation of Warzek’s rights to compulsory

4

process and confrontation, Warzek fails to show that such error denied him “the right to a

5

fair opportunity to defend against the State’s accusations.” Chambers v. Mississippi, 410

6

U.S. 284, 294 (1973). Even if an evidentiary error is of constitutional dimension, the court

7

must consider whether the error was harmless under Brecht v. Abrahamson, 507 U.S. 619

8

(1993). Dillard v. Roe, 244 F.3d 758, 767 n.7 (9th Cir. 2001).

9

In a habeas proceeding, determining whether the exclusion of evidence in the trial
court violated petitioner’s due process rights involves a balancing test, weighing the

11
For the Northern District of California

United States District Court

10

importance of the evidence against the state’s interest in exclusion. Chia, 360 F.3d at

12

1003-04; Miller, 757 F.2d at 994. Applying the Miller factors here, the exclusion of DeVries’

13

testimony did not prevent Warzek from presenting a full defense. Primarily, the excluded

14

evidence had little probative value because, as the state court found, Kathy M. had

15

admitted that she authorized the civil lawsuit to reach Warzek’s inheritance and did not rule

16

out the possibility that the lawsuit would be refiled after resolution of Warzek’s criminal

17

proceeding. Answer, Ex. C at 14. Further, DeVries was not the only witness on the issue

18

of the civil lawsuit, and his testimony would have been merely cumulative because it would

19

not have added much to Kathy M.’s own admission that she was seeking a judgment

20

against Warzek for money on the victim’s behalf “that would go directly to college.” RT

21

210. From this admission, defense counsel was able to argue in closing that the true

22

motivation behind the criminal case was that Kathy M. “clearly knew that there was an

23

inheritance that belonged to [Warzek] and she wanted some of that action.” RT 858.

24

Defense counsel also argued that the victim’s testimony was not reliable because her

25

statements about having sexual contact with Warzek was due to “a blowing up of the

26

allegations by [the victim] and Kathy that I suggest should give you great pause when you

27

are deciding the believability of this young woman.” RT 865. Although DeVries’ testimony

28

would have been reliable and capable of evaluation by the jury, his testimony would not
22

1

have been a “major part of the attempted defense” because the victim’s mother had already

2

testified about the monetary motive for filing the civil lawsuit against Warzek.

3

Warzek fails to show that the exclusion of DeVries’ testimony violated his right to

4

due process. Therefore, the decision of the state court to exclude testimony concerning

5

attorney-client privileged communications was neither unreasonable nor contrary to clearly

6

established federal law.

7

IV.

Ineffective Assistance of Counsel

8

A.

9

A claim of ineffective assistance of counsel is cognizable as a claim of denial of the

Legal Standard

Sixth Amendment right to counsel, which guarantees not only assistance, but effective

11
For the Northern District of California

United States District Court

10

assistance, of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). The

12

benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so

13

undermined the proper functioning of the adversarial process that the trial cannot be relied

14

upon as having produced a just result. Id.

15

In order to prevail on an ineffectiveness of counsel claim, petitioner must satisfy the

16

two-pronged test set forth in Strickland. First, petitioner must establish that counsel’s

17

performance was deficient, i.e., that it fell below an “objective standard of reasonableness”

18

under prevailing professional norms. Id. at 687-88. Second, he must establish that he was

19

prejudiced by counsel’s deficient performance, i.e., that “there is a reasonable probability

20

that, but for counsel’s unprofessional errors, the result of the proceeding would have been

21

different.” Id. at 694. A reasonable probability is a probability sufficient to undermine

22

confidence in the outcome. Id. If a petitioner cannot establish that defense counsel’s

23

performance was deficient, it is unnecessary for a federal court considering an ineffective

24

assistance habeas claim to address the prejudice prong of the Strickland test. See

25

Siripongs v. Calderon, 133 F.3d 732, 737 (9th Cir. 1998).

26

The Strickland framework for analyzing ineffective assistance of counsel claims is

27

considered to be “clearly established Federal law, as determined by the Supreme Court of

28

the United States” for the purposes of 28 U.S.C. § 2254(d) analysis. Cullen, 131 S. Ct. at
23

1

1403. A “doubly” deferential judicial review is appropriate in analyzing ineffective

2

assistance of counsel claims under § 2254. See id. at 1410–11; Harrington, 131 S. Ct.

3

770, 788 (same); Premo v. Moore, 131 S. Ct. 733, 740 (2011) (same). The general rule of

4

Strickland, i.e., to review a defense counsel’s effectiveness with great deference, gives the

5

state courts greater leeway in reasonably applying that rule, which in turn “translates to a

6

narrower range of decisions that are objectively unreasonable under AEDPA.” Cheney v.

7

Washington, 614 F.3d 987, 995 (9th Cir. 2010) (citing Yarborough v. Alvarado, 541 U.S.

8

652, 664 (2004)). When § 2254(d) applies, “the question is not whether counsel’s actions

9

were reasonable. The question is whether there is any reasonable argument that counsel
satisfied Strickland’s deferential standard.” Harrington, 131 S. Ct. at 788.

11
For the Northern District of California

United States District Court

10

B.

12

Warzek contends that his trial counsel was ineffective for failing to object to

13

questioning during Warzek’s cross-examination that suggested that the prosecution had a

14

source of information unknown to the jury which corroborated the truth of the matters

15

referred to in the questions. This ineffective assistance of counsel claim does not warrant

16

habeas relief.

17

Failure to Object

As discussed earlier in the context of Warzek’s first habeas claim concerning the

18

admission of child pornography, the prosecutor asked Warzek about his familiarity with 14

19

different websites with provocative names or advertising that had been visited by his

20

computer. For example, the prosecutor referred to a website featuring young girls named

21

galitsin-new[dot]com and asked Warzek whether he knew that his computer had visited that

22

website approximately 833 times. RT 580-581. The prosecutor also asked Warzek if he

23

was aware that his computer had visited particular websites 258 times, 82 times, 37 times,

24

29 times, 24 times, 22 times, 21 times, and 19 times, respectively. RT 581-586. Warzek

25

contends that the prosecutor never presented evidence to support the suggestion that

26

Warzek’s computer had visited those websites for the specific number of times mentioned

27

in the questions, or that the websites at issue actually contained illegal child pornography

28

rather than adult pornography. Traverse at 27. Warzek contends that his trial attorney
24

1

provided ineffective assistance by failing to object to these questions which suggested to

2

the jury that the prosecution had a source of information to corroborate the number of times

3

that Warzek’s computer visited each website.

4

In the last reasoned opinion to address the ineffective assistance claim, the state

5

court held that Warzek failed to show deficient representation because under state law, “it

6

is not improper to ask a question of a defense witness that suggests the existence of facts

7

harmful to the defendant if the prosecutor has a good faith belief the question will be

8

answered in the affirmative or that facts can and will be proved if their existence is denied.”

9

Answer, Ex. C at 16-17 (citation omitted). The state court reasoned that because all of the
challenged questions related to the computer expert’s investigation and testimony, “trial

11
For the Northern District of California

United States District Court

10

counsel could reasonably have failed to object because he held no doubt that the

12

prosecutor (1) had a good faith belief that the questions would be answered in the

13

affirmative, or (2) could prove the facts.” Id. at 17. The state court noted that the evidence

14

had already demonstrated that Warzek’s computer harbored at least 1,984 images of child

15

pornography downloaded from websites. “In this context, the questions to defendant did

16

not make an innuendo but rather essentially asked whether defendant knew from where the

17

pornography came.” Id.

18

Warzek contends that a reasonably competent attorney would have objected to the

19

improper line of questioning, particularly in light of trial counsel’s efforts to exclude the

20

evidence of child pornography that were found on Warzek’s computer. Traverse at 30. For

21

the reasons stated by the state court, Warzek fails to show that counsel’s performance was

22

deficient. The prosecution’s computer forensics expert, John Muller, testified that he found

23

1,984 files on Warzek’s computer that were flagged as possible child pornography and then

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reviewed to confirm they contained child pornography. RT 312-315. The images on

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Warzek’s computer generally were pictures of female white girls as young as three years of

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age. RT 315. Furthermore, during the hearing on the motions in limine, the prosecutor

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specifically discussed the 1,984 images of child pornography that were found on Warzek’s

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computer and sought admission of a sample of 29 images, which defense counsel sought
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to exclude as prejudicial. RT 21-45. The prosecutor explained that she sought to introduce

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photos taken from websites that were downloaded from known child pornographic

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websites, as the computer forensic analysis established. RT 36-38. During direct

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examination, the computer forensics expert testified that he conducted a URL frequency

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report to determine the number of times that the browser was directed to a particular URL,

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but did not state specifically how many times each particular website was visited on

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Warzek’s computer. RT 332.

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Because the record reflects that Warzek’s trial counsel was, or should have been,

the various websites on Warzek’s computer, he did not have a reasonable basis to object

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For the Northern District of California

aware of the evidence that established the foundation for the prosecutor’s questions about

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United States District Court

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to the prosecutor’s cross-examination as lacking good faith belief in the underlying facts.

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See United States v. Williams, 455 F.2d 361, 365 (9th Cir. 1972) (rejecting argument on

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appeal that trial counsel failed to object to cross-examination of defendant, where the

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government’s questions were asked in good faith, based on a witness’s statements to the

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FBI). Furthermore, a reasonably competent attorney would not have objected to the

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questions for lack of a good faith basis to ask about the number of times each website was

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accessed, or whether the websites actually contained child pornography, because those

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objections would have given the state the opportunity to bring those facts into evidence

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through the testimony of the computer forensics expert and the images that were actually

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found on Warzek’s computer.

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Warzek fails to demonstrate that his trial attorney’s performance fell below an

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objective standard of reasonableness under the first Strickland prong. Further, under the

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second Strickland prong, any failure by trial counsel did not result in prejudicial error in light

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of the evidence of guilt in the record, as set forth in the discussion denying Warzek’s first

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habeas claim alleging that admission of the child pornography violated his right to due

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process. Warzek fails to demonstrate that he was denied effective assistance of counsel.

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V.

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Cumulative Effect of Alleged Errors
Warzek claims that the cumulative effect of the individual errors resulted in a trial

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that was fundamentally unfair. Even when separate incidents of misconduct “do not

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independently rise to the level of reversible error, the cumulative effect of multiple errors

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can violate due process.” Wood v. Ryan, 693 F.3d 1104, 1116 (9th Cir. 2012) (quotation

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marks and brackets omitted). Having reviewed the record, the court determines that

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Warzek’s allegations of error, even when considered in the aggregate, do not rise to the

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level of a due process violation.
CONCLUSION

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For the reasons set forth above, Warzek’s petition for a writ of habeas corpus is

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For the Northern District of California

United States District Court

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DENIED. This order fully adjudicates the petition and terminates all pending motions. The

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clerk shall close the file.

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CERTIFICATE OF APPEALABILITY

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To obtain a certificate of appealability, Warzek must make “a substantial showing of

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the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district court has

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rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is

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straightforward. “The petitioner must demonstrate that reasonable jurists would find the

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

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McDaniel, 529 U.S. 473, 484 (2000). Section 2253(c)(3) requires a court granting a

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COA to indicate which issues satisfy the COA standard. Here, the court finds that three

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claims presented by Warzek in his habeas petition meet that standard: the first claim that

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the state court’s admission of evidence that he viewed and possessed child pornography

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violated his due process rights; the second claim that the prosecution’s cross-examination

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of Warzek regarding his possession and viewing of child pornography violated his rights to

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due process and against self-incrimination; and the fourth claim that trial counsel provided

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ineffective assistance of counsel. Accordingly, the court GRANTS the COA as to those

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issues. See generally Miller-El, 537 U.S. at 335-38.

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IT IS SO ORDERED.

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Dated: May 29, 2013

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______________________________
PHYLLIS J. HAMILTON
United States District Judge

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For the Northern District of California

United States District Court

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