Powell v. Yates

Filing 9

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge Claudia Wilken on 6/21/2012. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 6/21/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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QUINCY POWELL,

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No. C 10-3154 CW (PR)

Petitioner,

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

v.
JAMES YATES, Warden,

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Respondent.
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Petitioner Quincy Powell, a state prisoner, has filed a pro se

United States District Court
For the Northern District of California

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petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,

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alleging the following four claims: (1) his trial counsel was

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ineffective for failing to move to sever the charges pertaining to

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the two incidents for which he was convicted; (2) the trial court

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violated his due process rights by admitting evidence of the

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victim's breast cancer and treatment; (3) the prosecutor's closing

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argument violated due process; and (4) cumulative error.

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"Argument" at 13-37.)1

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order to show cause why the present writ should not be granted.

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December 6, 2010, Respondent filed an answer.

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Petitioner filed a traverse.

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On August 6, 2010, the Court issued an

On March 14, 2011,

Court DENIES the petition.
PROCEDURAL BACKGROUND
An amended grand jury indictment charged Petitioner with eight
offenses.

The first seven pertained to crimes against a single

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On

Having considered all of the papers filed by the parties, the

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(Pet.

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Attached to Petitioner's seven-page petition form are
multiple pages of supporting documents, including a document
labeled, "Argument." Petitioner has numbered the pages of this
document as pages thirteen through thirty-seven. The Court will
use Petitioner's page numbering when citing to this document.

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victim, Alice K. (Alice), including: robbery; three counts of

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forcible rape; forcible sodomy; and forcible oral copulation.

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eighth count alleged that Petitioner robbed a teller at Wells Fargo

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Bank on the same day.

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with using a deadly and dangerous weapon (a cutting instrument) as

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to certain offenses.

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Petitioner had three prior convictions, three prior prison terms,

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and one prior conviction.

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an amended indictment.

United States District Court
For the Northern District of California

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The

The indictment further charged Petitioner

In addition, the indictment alleged that

A serious felony allegation was added in

The matter proceeded to a jury trial on all

counts, and the prior conviction allegations were bifurcated.

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On February 5, 2007, a jury found Petitioner guilty on all

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charges.

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true.

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The jury also found that the weapon use allegations were

On April 20, 2007, the trial court found that the allegations
of all the priors were true.

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On June 29, 2007, the trial court sentenced Petitioner to a

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twenty-year determinate term plus three consecutive terms of

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twenty-five years to life, which is a total term of ninety-five

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years to life in prison.

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Petitioner filed a timely appeal to the California Court of

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Appeal.

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trial court's judgment and remanded the matter for resentencing.

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The trial court resentenced Petitioner to a term of 141 years to

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life.

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Petitioner has not raised any contention pertaining to that matter.

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On April 30, 2009, the state appellate court affirmed the

The state appellate court upheld the sentence, and

Petitioner subsequently filed a petition for review in the

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California Supreme Court.

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review.

On July 29, 2009, that court denied

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On July 19, 2010, Petitioner filed the present federal habeas
petition.

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FACTUAL BACKGROUND
The state appellate court summarized the facts of the case as
follows:
A. Prosecution Case

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1. Crimes Against Alice
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United States District Court
For the Northern District of California

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Victim Alice testified that a man knocked on the
door of her residence in the morning of October 3, 2005,
said he had a problem with his car, and asked if she
could help him jump-start his vehicle. At trial, Alice
identified the man as appellant Powell, asserting she
was "one-hundred percent certain" of the identification.
Alice agreed to help, thinking Powell's car was
parked across the street. She walked out of her house
to her car, which was parked in her driveway. When she
got in, Powell jumped into the passenger seat and said
his car was at a bend in the road. Alice drove toward
the bend but did not see a car there. Powell told her
she was "really stupid" to open her door for him, but
not to worry because he was "a man of God ... on drugs"
and only needed money.
Alice told Powell she did not have much money
because she worked at a local high school. Powell
replied that he had attended that school and asked if
she knew a "Miss Powell." Powell assured Alice that he
would not hurt her, saying that when he first saw her
earlier that morning, opening her front door to take out
the trash, he thought she was a "dude." Over defense
counsel's objection, Alice explained to the jury that,
at the time of the incident, her hair was short because
it had not fully grown back after chemotherapy.

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Alice told Powell that she did not have any money
with her, but she would give him money she had at her
home. She drove back to her house with Powell, very
afraid. She asked Powell to wait outside the house
while she got the money, but he pushed his way inside
behind her.
Alice gave Powell $30 from her wallet. He insisted
it was not enough, and she replied it was all she had.
Taking the money, Powell headed toward the front door
and instructed Alice to sit on an ottoman and not call
the police. At the door, however, Powell stopped,
turned around, looked at Alice, and told her to take off
all her clothes. When she refused, Powell asked, "do
you want to live or not?" Alice took off her clothes
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except for her underwear. Powell told her to remove her
underwear, she refused, and Powell again asked, "do you
want to live or not?" Alice complied and was terrified.
Powell began to remove his clothing, including a dark
sweatshirt, and ordered her to spread her legs. Alice
then noticed he had a box cutter or "exacto" knife in
his hand; she complied with his demands out of fear,
thinking he might kill her.

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United States District Court
For the Northern District of California

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Powell tried to insert his penis into Alice's
vagina. As he did, he touched her breast. Alice told
him that her breast was not real and she had been sick
with cancer. Powell replied, "Don't be such a crybaby."
After penetrating her and thrusting for a few
minutes, Powell said something like, "this isn't
working." He removed his penis and ordered her to the
floor. When she complied, he again penetrated her
vagina. A few minutes later Powell became frustrated,
said "this isn't working" and "[i]t will have to be
doggie-style." He removed his penis and told her to
turn over on her stomach. After she did so, he
penetrated her vagina a third time and then penetrated
her anus. When she screamed in pain, he told her to be
quiet. Powell next ordered her to the ottoman and
demanded she "suck" his penis. She said she could not
do it, and he again asked, "do you want to live or not?"
Alice complied.

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Still unable to ejaculate, Powell was angry and
frustrated. He removed his penis and told her: "This is
not working" and something like, "Oh, I give up. Just
give me the money and the goh." Alice did not know what
"goh" was until he demanded her jewelry; she then
realized he meant "gold." When Alice told Powell she
had no jewelry, he brought his hand down hard on her
neck in anger; she felt a liquid dripping down her body
and realized he had stabbed her with the box cutter.

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Bleeding "all over the floor" and believing she was
going to die, Alice went to the kitchen. When she saw
that Powell was rifling through her purse in the dining
room, she ran out the front door to a neighbor's house.
Neighbor Celestia Reynolds testified that she heard
yelling that morning around 6:30 a.m. She looked out
her door and saw Alice running down the street without
any clothes, crying for help. "Very, very upset" and
quite frightened, Alice explained that a man had robbed
her and tried to rape her. Reynolds called the police.

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The police arrived soon afterwards. They found on
the floor a black sweatshirt that did not belong to
Alice, as well as broken glass and blood.

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Alice was transported to the hospital.
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Diana

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United States District Court
For the Northern District of California

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Cummings, a forensic nurse practitioner, conducted a sex
assault rape trauma (SART) examination. A puncture
wound on the side of Alice's neck was consistent with
her claim that she had been stabbed. Bruising and a
scratch on Alice's neck indicated attempted
strangulation. Multiple contusions and lacerations in
Alice's vaginal area, as well as a hematoma and
contusion in her anal area, were indicative of
non-consensual sex.
Criminalist Alice Neumann testified that DNA on a
swab taken from Powell's mouth matched DNA from the
sweatshirt police found in Alice's house. Powell's DNA
also matched DNA found in Alice's underwear, which had
tested positive for the presence of semen. According to
Neumann, that particular DNA profile occurs only once in
every 780 million of those who self-report as
"African-American," once in every 3.4 billion
Caucasians, and once in every 15 billion Hispanics.
Detective James Simpson testified that he
interviewed Powell on October 12, 2008. Powell
initially appeared forthright, but he became very quiet
when Simpson described the assault on Alice, at one
point becoming teary-eyed. Powell said he attended the
high school where Alice worked and knew "Ms. Powell"
there. Simpson obtained corroborating evidence that
Powell had attended the school.

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After the incident, the police showed Alice a set
of six photographs, which included a photograph of
Powell. Alice was unable to point out her assailant
with 100 percent certainty. At trial, however, she
explained that she was 100 percent certain of her
identification of Powell in the courtroom because "when
you have a living human being in front of you rather
than a photograph, it is possible to recognize traits
that you have seen before."

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2. The Bank Robbery
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On the same morning as the attack on Alice, Refugio
Huerta was working as a teller at the Redwood City
branch of Wells Fargo Bank. At approximately 10:45
a.m., a man wearing a red beanie approached and handed
her a note that read, "I have a gun." Frightened,
Huerta gave the man $6,360 from her cash drawer, and he
left the bank with the money. At trial, Huerta was not
100 percent sure Powell was the robber, because by the
time of trial Powell had grown facial hair. He did,
however, bear similarities to the robber. In addition,
Huerta identified a red beanie, later found outside the
bank, as the beanie worn by the robber.
Elena Garcia, another bank teller working during
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United States District Court
For the Northern District of California

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the robbery, recalled that the robber wore a silver
jacket and a red beanie. When shown a photo array by a
police officer after the crime, she almost immediately
pointed to Powell's picture and said, "that's probably
the one." At trial, Garcia did not identify Powell as
the robber, asserting that no one in court looked
familiar.
David Shummers, working a quarter-block from the
bank, saw a "black" man run by him on the street on the
day of the robbery. Shummers later noticed the man had
dropped a red beanie and informed the police. The
police recovered the red beanie at the scene. DNA
testing revealed that Powell was a major contributor of
the DNA found on the beanie.
Two days after the robbery, police detective
Jacqueline Gouldson asked Powell if he had a gun during
the bank robbery in Redwood City. Powell said "no". He
then said something to the effect of, "it doesn't
matter; my life is over anyway." He put his head down
and started to cry.

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LaBatiste Heath testified that on October 3, 2005,
at around 9:00 a.m. -- between the time of the attack on
Alice and the bank robbery in Redwood City -- she was at
a house in East Menlo Park smoking crack cocaine with
another woman. Powell came by the house and joined
them. He seemed "kind of uneasy." He claimed he had to
go to Redwood City to pick up a check from his lawyer
for an inheritance. She and the other woman drove him
to Redwood City in a van. At their destination, Powell,
wearing a cap or beanie, got out of the van. He
returned about seven minutes later, got in the van, and
instructed the driver, "go, go." Heath identified
Powell in the bank's security photographs of the
robbery.

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B. Defense Case

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Powell did not testify at trial and did not offer
any substantial affirmative evidence on his behalf.

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(People v. Powell (Op.), No. A119300, 2009 WL 1164975 (Cal. Ct.
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App. Apr. 30, 2009) at *1-4.)
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LEGAL STANDARD
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A federal court may entertain a habeas petition from a state
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prisoner "only on the ground that he is in custody in violation of
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the Constitution or laws or treaties of the United States."

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U.S.C. § 2254(a).

Under the Antiterrorism and Effective Death
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Penalty Act of 1996 (AEDPA), a district court may not grant habeas

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relief unless the state court's adjudication of the claim:

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"(1) resulted in a decision that was contrary to, or involved an

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unreasonable application of, clearly established Federal law, as

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determined by the Supreme Court of the United States; or

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(2) resulted in a decision that was based on an unreasonable

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determination of the facts in light of the evidence presented in

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the State court proceeding."

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Taylor, 529 U.S. 362, 412 (2000).

28 U.S.C. § 2254(d); Williams v.
The first prong applies both to

United States District Court
For the Northern District of California

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questions of law and to mixed questions of law and fact, id. at

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407-09, and the second prong applies to decisions based on factual

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determinations, Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

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A state court decision is "contrary to" Supreme Court

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authority, that is, falls under the first clause of § 2254(d)(1),

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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

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court decides a case differently than [the Supreme] Court has on a

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set of materially indistinguishable facts."

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412-13.

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Supreme Court authority, under the second clause of § 2254(d)(1),

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if it correctly identifies the governing legal principle from the

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Supreme Court's decisions but "unreasonably applies that principle

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to the facts of the prisoner's case."

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court on habeas review may not issue the writ "simply because that

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court concludes in its independent judgment that the relevant

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state-court decision applied clearly established federal law

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erroneously or incorrectly."

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must be "objectively unreasonable" to support granting the writ.

Williams, 529 U.S. at

A state court decision is an "unreasonable application of"

Id. at 413.

Id. at 411.

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The federal

Rather, the application

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Id. at 409.

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"Factual determinations by state courts are presumed correct

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absent clear and convincing evidence to the contrary."

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537 U.S. at 340.

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evidence to overcome the presumption of correctness under

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§ 2254(e)(1); conclusory assertions will not do.

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only Supreme Court law is binding on the states, Ninth Circuit

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precedent remains relevant persuasive authority in determining

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whether a state court decision is objectively unreasonable.

United States District Court
For the Northern District of California

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Miller-El,

A petitioner must present clear and convincing

Id.

Although

Clark

v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003).

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If constitutional error is found, habeas relief is warranted

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only if the error had a "'substantial and injurious effect or

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influence in determining the jury's verdict.'"

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532 U.S. 782, 795 (2001) (quoting Brecht v. Abrahamson, 507 U.S.

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619, 638 (1993)).

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Penry v. Johnson,

When there is no reasoned opinion from the highest state court

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to consider a petitioner's claims, the court looks to the last

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reasoned opinion of the highest court to analyze whether the state

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judgment was erroneous under the standard of § 2254(d).

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Nunnemaker, 501 U.S. 797, 801-06 (1991).

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California Court of Appeal is the highest court that addressed

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Petitioner's claims.

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Ylst v.

In the present case, the

DISCUSSION
I.

Ineffective Assistance of Trial Counsel for Failure to Move to
Sever the Charges Pertaining to Two Incidents

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Petitioner contends that his trial counsel was ineffective for
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failing to move to sever charges pertaining to the sexual assault
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and the bank robbery.

(Pet. "Argument" at 13.)

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The state appellate court rejected this claims as follows:

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A. Ineffective Assistance for Failing to Move for
Severance

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United States District Court
For the Northern District of California

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To prevail on a claim of ineffective assistance of
counsel, a defendant must show: (1) counsel's
performance was deficient because his representation
fell below an objective standard of reasonableness under
prevailing professional norms; and (2) prejudice flowing
from counsel's performance or lack thereof. (People v.
Lucas (1995) 12 Cal.4th 415, 436.) Powell contends his
trial counsel should have moved to sever the bank
robbery count. He therefore must show that reasonably
competent counsel would have moved for severance, the
motion would have been successful, and it is reasonably
probable he would have obtained a more favorable outcome
if the counts had been severed. (People v. Grant (1988)
45 Cal.3d 829, 864-865.) Like respondent, we will focus
on the last two elements.

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1.

Potential Success of a Severance Motion

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Section 954 provides that a trial court may order
severance of joinable offenses "in the interests of
justice and for good cause shown." Severance of the
charges may be constitutionally required only if joinder
"would be so prejudicial that it would deny a defendant
a fair trial." (People v. Musselwhite (1998) 17 Cal.4th
1216, 1243-1244.)

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Factors to consider in reviewing a court's denial
of a severance motion include: "(1) the
cross-admissibility of the evidence in separate trials;
(2) whether some of the charges are likely to unusually
inflame the jury against the defendant; (3) whether a
weak case has been joined with a strong case or another
weak case so that the total evidence may alter the
outcome of some or all of the charges; and (4) whether
one of the charges is a capital offense, or the joinder
of the charges converts the matter into a capital case.
[Citation.]" (People v. Mendoza (2000) 24 Cal.4th 130,
161.) We apply these factors to determine whether the
trial court would have granted the motion if it had been
made.
Powell fails to demonstrate that the severance
motion would have been granted. He argues that the
evidence of the assault on Alice would not have been
admissible in the bank robbery case. However, in light
of Powell's claim that the identity of the bank robber
was at issue, the evidence that Powell had committed an
armed robbery of Alice just hours earlier might arguably
have been admissible in the bank robbery case to
supplement the evidence that his DNA matched the DNA
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profile of the bank robber. In addition, since there
was a DNA link between Powell and the perpetrator in
both cases, evidence concerning DNA testing procedures
would have been admissible in both cases. There was,
therefore, some overlap or cross-admissibility of the
evidence. Moreover, even if the evidence was not
cross-admissible, this is not an instance in which a
weak robbery case was joined with a strong sexual
assault case. There clearly was a bank robbery, and
there was ample evidence Powell did it. The bank's
security photographs showed Powell in the bank during
the robbery, one teller identified him as the robber in
a photographic lineup, and another teller stated that
Powell appeared similar to the robber. Powell's DNA was
found in a cap the robber dropped while fleeing the
bank. Under the circumstances, it is unlikely the trial
court would have found good cause to sever the counts
and require separate trials.

United States District Court
For the Northern District of California

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2.

Probability of a More Favorable Result

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Even if the severance motion had been granted,
there is no reasonable probability Powell would have
obtained a more favorable outcome. He insists the
sexual assault evidence "necessarily instilled a desire
on the part of the jury to punish appellant severely for
his misdeeds against [Alice]," and the jury could not
have been expected to give Powell "fair consideration"
on the bank robbery count because the jury was
"overwhelmed by the inflammatory evidence of the sexual
assault." Jurors, however, take their sworn duties far
more seriously than Powell supposes.

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The fact that Powell sexually assaulted Alice while
robbing her did not compel the jury to conclude he also
committed the bank robbery. To the contrary, Powell's
conviction was a product of the overwhelming evidence
that Powell was the one who robbed the bank: the
testimony of the person who drove him there and
identified him in the security photograph of the
robbery, two tellers who identified him as the robber,
and his own DNA, which matched DNA found on the robber's
cap. While teller Huerta testified she could not be
"one hundred percent" sure that Powell was the bank
robber because of his facial hair, she stated he was
similar to the robber and identified the red beanie
(with Powell's DNA) as the cap the robber wore. Teller
Garcia could not identify Powell in court but identified
him in a photographic lineup. The DNA evidence linking
Powell to the crime was undisputed. In addition,
Powell's involvement in the bank robbery was shown by
his response to Detective Gouldson's question about
whether he had a gun at the bank robbery: although
denying his use of a gun, Powell said his life was over
anyway and cried.
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Because there is no reasonable probability that
Powell would have obtained a better verdict, he cannot
establish that his counsel's failure to move for
severance of count eight compels reversal of his
conviction.

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(Op. at *5-6.)
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Here, in order to prevail on a Sixth Amendment ineffectiveness
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of counsel claim, Petitioner must show: first, that counsel's
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performance was deficient, i.e., that it fell below an "objective
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standard of reasonableness" under prevailing professional norms.
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Strickland v. Washington, 466 U.S. 668, 687–88 (1984).

Second, he

United States District Court
For the Northern District of California

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must establish that he was prejudiced by counsel's deficient
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performance, i.e., that "there is a reasonable probability that,
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but for counsel's unprofessional errors, the result of the
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proceeding would have been different."

Id. at 694.

A reasonable

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probability is defined as a probability sufficient to undermine
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confidence in the outcome.

Judicial scrutiny of counsel's

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performance must be highly deferential, and a court must indulge a
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strong presumption that counsel's conduct falls within the wide
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range of reasonable professional assistance.

Id. at 689.

A

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difference of opinion as to trial tactics does not constitute
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denial of effective assistance.

United States v. Mayo, 646 F.2d

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369, 375 (9th Cir. 1981), and tactical decisions are not
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ineffective assistance simply because in retrospect better tactics
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are known to have been available.

Bashor v. Risley, 730 F.2d 1228,

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1241 (9th Cir. 1984).
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The Strickland framework for analyzing ineffective assistance
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of counsel claims is considered to be "clearly established Federal
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law, as determined by the Supreme Court of the United States" for
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the purposes of 28 U.S.C. § 2254(d) analysis.

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U.S. at 404-08.

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See Williams, 529

Here, the state appellate court held that under California law

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a severance motion would have been futile.

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state appellate court's interpretation of California law is binding

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on this Court.

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(state court's interpretation of state law, including one announced

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on direct appeal of challenged conviction, binds federal court

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sitting in habeas corpus).

(Op. at *5-6.)

See Bradshaw v. Richey, 546 U.S. 74, 76 (2005)

Counsel's failure to make such a

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United States District Court
For the Northern District of California

The

motion, therefore, could not have constituted ineffective

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assistance.

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2005).

See Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir.

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Moreover, even if his trial counsel's performance was

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deficient, Petitioner has not established prejudice; that is, he

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has not shown that there was a reasonable probability of a more

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favorable result had the cases been severed.

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"There is no prejudicial constitutional violation unless

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'simultaneous trial of more than one offense . . . actually

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render[ed] petitioner's state trial fundamentally unfair and hence,

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violative of due process.'"

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772 (9th Cir. 2000) (quoting Featherstone v. Estelle, 948 F.2d

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1497, 1503 (9th Cir. 1991)).

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impermissible joinder had a substantial and injurious effect or

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influence in determining the jury's verdict."

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may be considered in determining whether joinder is unduly

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prejudicial include the joinder of other crimes where the evidence

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would otherwise be inadmissible and the joinder of a weak

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evidentiary case with a strong one.

Sandoval v. Calderon, 241 F.3d 765,

"This prejudice is shown if the

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See id.

Id.

Factors that

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Here, the state appellate court concluded that this was "not

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an instance in which a weak robbery case was joined with a strong

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sexual assault case."

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overwhelming evidence that Petitioner committed the robbery.

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court also found that the evidence linking Petitioner to the

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robbery was undisputed.

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Petitioner's assertion -- that the jury was "overwhelmed by the

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inflammatory evidence of the sexual assault," (id. at *6), -- was

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insufficient to establish prejudice.

United States District Court
For the Northern District of California

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(Op. at *5.)

The court found that there was
The

Thus, the court concluded that

As mentioned above, a danger of prejudice arises when a strong

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case is joined with a weak case, in that the jury could

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impermissibly infer "because he did it before, he must have done it

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again."

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(quoting United States v. Bagley, 772 F.2d 482, 488 (9th Cir.

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1985)).

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robbery charge was neither weak, nor significantly less compelling

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than the evidence supporting the sexual assault.

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robbery charge and rebutting Petitioner's claim that the identity

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of the bank robber was at issue, the state offered photographic

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evidence and witness testimony in order to identify Petitioner as

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the perpetrator.

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Petitioner to a cap the robber dropped while fleeing the bank.

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Therefore, the state appellate court was not unreasonable in its

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determination that because the evidence regarding neither charge

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was weak, there was no danger of a "spillover" effect from a

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stronger case to a weaker case.

27

155, 173 (1992).

28

reasonable because, although Petitioner claims that he was

Bean v. Calderon, 163 F.3d 1073, 1085 (9th Cir. 1998)

However, in the present case, the evidence supporting the

In proving the

The state also presented DNA evidence linking

See People v. Sandoval, 4 Cal. 4th

Finally, the state appellate court's findings are

13

1

prejudiced, his conclusory assertions fail to support such a

2

finding.

3

(rejecting two ineffective assistance of counsel claims based on

4

petitioner's failure to produce evidence of prejudice).

5

See Rios v. Rocha, 299 F.3d 796, 813 n.23 (9th Cir. 2002)

The state appellate court's rejection of Petitioner's

6

ineffective assistance of counsel claim was not contrary to or an

7

unreasonable application of Strickland.

8

DENIED.

9

II.

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22

Accordingly, this claim is

Due Process Violation for Admission of Breast Cancer Evidence
Petitioner claims that the trial court abused its discretion

by admitting evidence of Alice's breast cancer and treatment.
The following factual background for this claim has been taken
from the state appellate court's decision:
Before the charged offenses, Alice had undergone a
mastectomy, reconstructive surgery, and four rounds of
chemotherapy for breast cancer. Due to the
chemotherapy, she had lost most or all of her hair. It
was still very short at the time of the charged crimes.
Powell moved in limine to exclude portions of
Alice's medical records that noted her mastectomy and
cancer treatment. The prosecutor asserted the evidence
was relevant to establish that any medication Alice was
taking at the time did not affect her ability to
recollect the assault. Powell's attorney responded he
was not going to raise such a challenge. The prosecutor
further argued that the evidence of Alice's condition at
the time of the offense was relevant to explain Powell's
comment to Alice that he first thought she "was a dude"
and to establish why she did not physically resist the
assault. The court deferred its ruling.

23
24
25
26
27

Powell also moved to exclude statements Alice made
about her cancer treatment to nurse Cummings, which
Cummings had recorded in notes she made during the SART
examination. Powell argued the notations were hearsay
and irrelevant. The prosecutor responded that the
evidence was relevant to Alice's credibility and state
of mind, and admissible under Evidence Code section 1250
as declarations of her physical and mental state when
she spoke to Cummings.

28
14

1
2
3
4
5
6
7

The trial court ruled that the medical history
references in the medical records were admissible. The
court explained in part: "I'm going to find that the
history, the medical history, the upper-left-hand corner
of page 2 is relevant to the course of treatment that
[Alice] was going to follow after her examination at the
emergency room. It is obviously necessary to take a
medical history in order to treat a person properly.
[¶] So, the mastectomy, the reconstructive, the four
rounds of chemo and the medication she was on is all
relevant, because that could influence the medications
that are eventually prescribed to her in connection with
this case, as are any preexisting injuries that she
reported to the nurse."

8
9
United States District Court
For the Northern District of California

10
11
12
13
14

At trial, evidence was presented regarding Alice's
medical condition and treatment. Alice testified, in
explaining Powell's statement that he initially thought
she was a "dude," that she had lost hair due to
chemotherapy. She also testified that when Powell
touched her breast, she told him the breast was not real
and she had undergone cancer surgery. In addition,
Alice explained that her mastectomy and reconstructive
surgery had left a long scar on her torso. Nurse
Cummings testified that during her examination of Alice
she learned that Alice had undergone chemotherapy and
observed that Alice's surgical wound had not completely
healed.

15
(Op. at *6-7.)
16
Petitioner argues that evidence of Alice's breast cancer and
17
treatment (1) was not relevant, (2) was unduly prejudicial, and
18
(3) was a violation of his due process rights, which rendered his
19
trial fundamentally unfair.
20
The state appellate court rejected these claims as follows:
21
22
23
24
25
26
27
28

[T]he evidence concerning Alice's cancer and
treatment was not entirely irrelevant. As the trial
court noted, her prior medical condition and treatment
were germane to her medical condition at the time of the
incident and her subsequent medication, which was
relevant to her ability to perceive or recollect the
events. On the other hand, the materiality of such
evidence was slight, since Powell's attorney indicated
he would not (and did not) challenge Alice's credibility
on that basis. Alice's breast cancer and related
medical treatment were also relevant to explain Powell's
"I thought you was a dude" remark, although respondent
does not explain why the prosecutor needed to introduce
that remark. To the extent the evidence of Alice's
15

1
2
3
4
5
6
7
8
9
United States District Court
For the Northern District of California

10
11

medical condition showed a weakened physical condition,
it was relevant to Alice's credibility in claiming that
she did not consent to the sex acts and that Powell
perpetrated his crimes by force or threat of force. In
short, there was some probative value to the evidence,
and the court did not abuse its discretion in admitting
it over defense counsel's relevance objection.
Powell argues that the evidence, even if marginally
relevant, was nonetheless inadmissible under Evidence
Code section 352, because its slight probative value was
outweighed by the unduly prejudicial effect of its
inflammatory nature. In particular, Powell urges, he
was prejudiced by Alice's testimony that he told her not
to be a "crybaby" when he learned of her medical
condition. However, defense counsel did not object when
Alice testified about Powell's crybaby statement. Nor
did defense counsel object to any of the evidence
concerning Alice's medical condition or treatment on the
ground it was inadmissible under Evidence Code section
352. His objections under that statute are therefore
forfeited and waived.[FN2]

12
13
14
15
16
17
18
19
20
21
22
23
24

[FN2.] Powell contends his trial counsel
provided ineffective assistance by failing to
object to the evidence under Evidence Code
section 352. He does not establish, however,
that an objection on that ground would have
yielded a more favorable outcome at trial.
Powell also argues that his counsel was remiss
in failing to move to strike testimony and
failing to move for a mistrial when it became
apparent that the prosecutor was using the
evidence to invoke sympathy toward Alice and
anger toward Powell. Again, however, in view
of the quantity and quality of the evidence
against Powell, there is no reasonable
probability he would have obtained a more
favorable result if his counsel had brought a
motion to strike the evidence or a motion for
a mistrial.
Not only does Powell fail to establish error in the
admission of the evidence of Alice's medical condition
and treatment, he does not establish a reasonable
probability of a more favorable result if the challenged
evidence had been excluded. (People v. Mullens (2004)
119 Cal.App.4th 648, 658-659.)[FN3]

25
26
27
28

[FN3.] Because admission of the evidence did
not violate Powell's constitutional rights to
a fair trial and due process of law, the
Chapman harmless error standard does not
apply. (Chapman v. California (1967) 386 U.S.
18, 24.) Even if we applied that standard, we
would still conclude any error in the
16

1
2
3
4
5
6
7
8

admission of the evidence was harmless.
In the first place, the evidence that Powell
committed the offenses in counts one through seven was
overwhelming and not substantially disputed. The fact
that Powell was the perpetrator was established by
Alice's "one hundred percent certain" identification of
him at trial, evidence that he attended the high school
that the robber attended, Alice's testimony that he
asked if she knew "Miss Powell" at the school, and the
DNA evidence that matched Powell's DNA to DNA found in
Alice's underwear. Although Alice had not been able to
identify Powell with total certainty in a photographic
lineup, she explained at trial that she had no doubt
Powell was the one who robbed and raped her when seeing
him in person.

9
United States District Court
For the Northern District of California

10
11
12
13
14
15
16

Furthermore, to the extent the challenged evidence
might have invoked sympathy for Alice or resentment
against Powell, there is no indication it influenced the
jury's decision. The challenged evidence would not have
added much to a trier of fact's view of Powell in light
of the other evidence demonstrating his callousness in
perpetrating the crimes: he repaid Alice's willingness
to help him by invading her home, repeatedly penetrating
her vagina and anus and forcing her to orally copulate
his penis under threat of death, and then stabbing her
with a box cutter. In addition, to the extent any
sympathy or prejudice arose from the admission of the
challenged evidence, the court instructed the jury not
to let bias, prejudice or sympathy influence its
decision.

17
18

Powell has not demonstrated reversible error in the
admission of the evidence concerning Alice's medical
condition and treatment.

19
(Id. at *7-8.)
20
The admission of evidence is not subject to federal habeas
21
review unless a specific constitutional guarantee is violated or
22
the error is of such magnitude that the result is a denial of the
23
fundamentally fair trial guaranteed by due process.

See Henry v.

24
Kernan, 197 F.3d 1021, 1031 (9th Cir. 1999); Colley v. Sumner, 784
25
F.2d 984, 990 (9th Cir. 1986).

The Supreme Court "has not yet made

26
a clear ruling that admission of irrelevant or overtly prejudicial
27
evidence constitutes a due process violation sufficient to warrant
28
issuance of the writ."

Holley v. Yarborough, 568 F.3d 1091, 1101
17

1

(9th Cir. 2009) (finding that trial court's admission of irrelevant

2

pornographic materials was "fundamentally unfair" under Ninth

3

Circuit precedent but not contrary to, or an unreasonable

4

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

5

In the present case, the state appellate court's finding did

6

not contradict or unreasonably apply federal law, because admission

7

of evidence of Alice's breast cancer and treatment did not render

8

the trial fundamentally unfair.

9

explained that "there was some probative value to the evidence, and

See id.

The state appellate court

United States District Court
For the Northern District of California

10

the court did not abuse its discretion in admitting it over

11

counsel's relevance objection."

12

prosecution was required to prove that Alice did not consent to the

13

sex acts, thus the evidence of Alice's medical condition showed

14

that she failed to resist due to her weakened physical condition.

15

(Id.)

16

(Op. at *7.)

For example, the

Petitioner argues that the evidence was inflammatory.

He

17

claims that because an impermissible inference could be drawn, it

18

is the only inference that the jury could have drawn.

19

long as the jury may draw some permissible inference from the

20

evidence, its admission does not violate due process.

21

Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991).

22

determination of whether evidence, while being relevant, is

23

prejudicial is a question of state law, and any alleged error under

24

state law does not state a claim cognizable in federal habeas

25

corpus proceedings.

26

In any case, Petitioner falsely assumes that the evidence at issue

27

should be considered irrelevant simply because it could have been

28

prejudicial.

However, so

Jammal v.

Moreover, the

Estelle v. McGuire, 502 U.S. 62, 68 (1991).

Because the jury was capable of drawing permissible

18

1

inferences from this evidence to prove material issues in the

2

present case, and because the state appellate court reasonably did

3

not find the admission of this evidence to be prejudicial,

4

Petitioner's argument that the admission violated his due process

5

rights is unavailing.

6

Furthermore, Petitioner argues that reversal is required

7

because it was reasonably probable that a more favorable result

8

would have been reached absent the error of admitting this

9

evidence.

(Pet. "Argument" at 27.)

To the extent that the

United States District Court
For the Northern District of California

10

evidence of Alice's cancer invoked sympathy, it was marginal

11

compared to the overwhelming and not substantially disputed

12

evidence that the Petitioner was the perpetrator of the sexual

13

assault:

14

Alice that Petitioner asked if she knew a "Miss Powell" at the

15

school and evidence that he attended the school, and DNA evidence

16

that matched Petitioner's DNA to DNA found in Alice's underwear.

17

Therefore, absent the admission of evidence of Alice's breast

18

cancer and treatment, it was not reasonably probable that

19

Petitioner would have received a more favorable result.

20
21

Alice's ability to identify him at trial, testimony from

Accordingly, Petitioner's claim relating to the admission of
evidence of Alice's breast cancer and treatment is DENIED.

22 III. Prosecutorial Misconduct During Closing Argument
23

Petitioner asserts that his right to due process was violated

24

by improper prosecutorial comments during closing argument.

25

"Argument" at 29.)

26

prosecutor made statements to appeal to the sympathy and passions

27

of the jury.

28

the relevant trial court proceedings as follows:

(Pet.

Specifically, Petitioner asserts that the

(Id. at 33.)

The state appellate court summarized

19

1
2
3
4
5
6
7

1. Background
Near the beginning of closing argument, the
prosecutor told the jury: "On October 3rd, 2005, [Alice]
received the label rape victim. Not by her doing, but
at the hands of one man in the entire world. And she
will have that title to the day she dies. [¶] She will
also have the scars that one cannot see unlike the scars
on her chest from her . . . ." At this point, Powell's
trial counsel interrupted and asserted the prosecutor's
comments were not a fair comment on the evidence. The
court directed the prosecutor to move on to something
else after verifying that the prosecutor was referring
to Alice's medical scarring.

8
9
United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18

The prosecutor continued: "She didn't deserve these
things to happen to her. She is the helpful individual.
But, at the hands of somebody else, she will have these
memories to live by. [¶] And, unfortunately, they
happened in the place where each and every one of us -from the day we first come home from the hospital, that
first day we are brought home, that safe and secure
place. The place where, when we are children and play
games like tag, home is the safe place. And, when we
are adults, home is where we want to go when we have
that rough day and we want to be by ourselves and relax.
[¶] But [Alice's] home is no longer her home. It is a
crime scene. And she will have that for the rest of her
life. When she works her second job in her office where
she has her chair where the man raped her, when she goes
and cleans up her floor, she will know the area where
she was on her back when he raped her and then was told
to turn over and he penetrated her again. When she
sweeps up, she will also see the area where she swept
where she had to clean up her own blood when she goes
into her kitchen every morning."

19
20
21

Defense counsel objected on the ground the
prosecutor was not fairly commenting on the evidence but
making "an appeal to passion and prejudice." The court
overruled the objection but invited defense counsel to
renew his objection if he found it necessary.

22
23
24
25
26
27
28

The prosecutor next stated, "These are all places
where these events happened, ladies and gentlemen. And
there is one man who did this." The prosecutor then
discussed at length the evidence implicating Powell and
each individual charge. Defense counsel made no further
objections.
(Op. at *8-9.)
A defendant's due process rights are violated when a misconduct
by the prosecutor renders a trial "fundamentally unfair."

20

Darden

1

v. Wainwright, 477 U.S. 168, 181 (1986).

2

issue is whether the prosecutor's remarks were improper; if so, the

3

next question is whether such conduct infected the trial with

4

unfairness.

5

A prosecutorial misconduct claim is decided "'on the merits,

6

examining the entire proceedings to determine whether the

7

prosecutor's remarks so infected the trial with unfairness as to

8

make the resulting conviction a denial of due process.'"

9

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

United States District Court
For the Northern District of California

10
11

Under Darden, the first

Tan v. Runnels, 413 F.3d 1101, 1112 (9th Cir. 2005).

Johnson

The state appellate court found that the prosecutor's remarks
were proper based on the following analysis:

12

2. Legal Standard

13

Prosecutorial behavior violates the federal
Constitution when it is so egregious that it "'"infects
the trial with such unfairness as to make the conviction
a denial of due process."'" (People v. Gionis (1995) 9
Cal.4th 1196, 1214.) The behavior violates state law if
it constitutes a deceptive or reprehensible means of
persuading the fact finder. (People v. Morales (2001)
25 Cal.4th 34, 44.) While a prosecutor has wide
latitude during closing argument, he or she cannot
personalize the evidence to the extent it amounts to an
appeal to the sympathy and passions of the jury. (See
e.g. People v. Fields (1983) 35 Cal.3d 329, 362.) On
the other hand, a prosecutor's argument "'"'may be
vigorous as long as it amounts to fair comment on the
evidence, which can include reasonable inferences, or
deductions to be drawn therefrom.'"'" (People v. Hill
(1998) 17 Cal.4th 800, 819.)

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

We must determine whether there is a reasonable
likelihood the jury construed or applied the challenged
comments in an improper or erroneous manner, in light of
the context of the entire closing argument. (People v.
Frye (1998) 18 Cal.4th 894, 970, overruled on other
grounds in People v. Doolin (2009) 45 Cal.4th 390, 421,
fn. 22; People v. Lucas, supra, 12 Cal.4th at p. 475.)
"'In conducting this inquiry, we "do not lightly infer"
that the jury drew the most damaging rather than the
least damaging meaning from the prosecutor's
statements.'" (People v. Brown (2003) 31 Cal.4th 518,
553-554.)

28
21

1

3. Application

2

Although the prosecutor told the jury that Alice
will view her home as a crime scene and alluded to her
medical condition, these prefatory remarks comprised
just a small fraction of the entire closing and rebuttal
arguments. The overriding thrust of the prosecutor's
argument to the jury was that Alice's testimony
established the elements of the charged offenses, and
Powell's identity as the perpetrator had been
established by Alice's testimony and the DNA test
results. The essence of the prosecutor's argument,
therefore, was that Powell should be convicted because
the evidence showed he was guilty. Viewing the
prosecutor's argument as a whole, the gratuitous
comments of which Powell complains did not create a risk
that Powell would be convicted for reasons irrelevant to
his guilt, constitute reprehensible behavior, or
otherwise inject unfairness into the proceeding. Nor do
we see any reasonable likelihood that the jury construed
or applied the comments in an improper or erroneous
manner. As mentioned ante, the jury was instructed that
it could not base its verdict on sympathy, bias, or
prejudice, and nothing in the record indicates it did.

3
4
5
6
7
8
9
United States District Court
For the Northern District of California

10
11
12
13
14
15
16

Powell has failed to establish prosecutorial
misconduct.
(Op. at *9-10.)
The state appellate court reasonably found that the

17

prosecutor's comments were unimportant, particularly when

18

considered in the context of the trial as a whole.

19

prosecutor's comments, even if they were improper, did not rise to

20

the level of a due process violation.

21

determining whether improper comments rise to the level of a due

22

process violation are (1) the weight of evidence of guilt, see

23

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

24

misconduct was isolated or part of an ongoing pattern, see Lincoln

25

v. Sunn, 807 F.2d 805, 809 (9th Cir. 1987); (3) whether the

26

misconduct related to a critical part of the case, see Giglio v.

27

United States, 405 U.S. 150, 154 (1972); and (4) whether the

28

comments misstated or manipulated the evidence, see Darden, 477

22

The

Factors considered in

1

U.S. at 182.

2

Here, the evidence of guilt as to the sexual assault was very

3

strong.

4

they occurred only during the beginning of his closing argument and

5

were a small portion of the entire argument.

6

did not misstate or manipulate any of the evidence presented at

7

trial.

8
9

The prosecutor's comments were relatively isolated in that

Accordingly, the prosecutor's comments did not rise to the
level of a due process violation.

10
United States District Court
For the Northern District of California

Lastly, the comments

prosecutorial misconduct is DENIED.

11

IV.

Therefore, Petitioner's claim of

12
13
14

Cumulative Error
Petitioner claims that the cumulative effect of the errors

at his trial denied his constitutional rights.
In some cases, although no single trial error is

15

sufficiently prejudicial to warrant reversal, the cumulative effect

16

of several errors may still prejudice a petitioner so much that

17

habeas relief must be granted.

18

862, 893-95 (9th Cir. 2003) (affirming district court's conditional

19

grant of habeas relief where multiple constitutional errors

20

hindered the petitioner's efforts to challenge every important

21

element of proof offered by prosecution).

22

no single constitutional error, nothing can accumulate to the level

23

of a constitutional violation.

24

939, 957 (9th Cir. 2002); Rupe v. Wood, 93 F.3d 1434, 1445 (9th

25

Cir. 1996).

See Alcala v. Woodford, 334 F.3d

However, where there is

See Mancuso v. Olivarez, 292 F.3d

26

Because this Court finds, based on its assessment of

27

Petitioner's claims, no single constitutional error, Petitioner is

28

not entitled to federal habeas relief on his claim of cumulative

23

1

error.

Accordingly, this claim for habeas relief is DENIED.

2

CONCLUSION

3
4

For the foregoing reasons, the Court DENIES the petition for
a writ of habeas corpus on all claims.

5

Further, a Certificate of Appealability is DENIED.

See Rule

6

11(a) of the Rules Governing Section 2254 Cases.

7

not made "a substantial showing of the denial of a constitutional

8

right."

9

that "reasonable jurists would find the district court's assessment

28 U.S.C. § 2253(c)(2).

Petitioner has

Nor has Petitioner demonstrated

United States District Court
For the Northern District of California

10

of the constitutional claims debatable or wrong."

11

McDaniel, 529 U.S. 473, 484 (2000).

12

denial of a Certificate of Appealability in this Court but may seek

13

a certificate from the Ninth Circuit under Rule 22 of the Federal

14

Rules of Appellate Procedure.

15

Governing Section 2254 Cases.

16
17
18

Slack v.

Petitioner may not appeal the

See Rule 11(a) of the Rules

The Clerk of the Court shall enter judgment and close the
file.
IT IS SO ORDERED.

19
Dated: 6/21/2012
20

CLAUDIA WILKEN
United States District Judge

21
22
23
24
25
26
27
28
24