Sands v. Lewis et al

Filing 8

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS. Signed by Judge Claudia Wilken on 11/23/2011. (ndr, COURT STAFF) (Filed on 11/23/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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PHILIP LEO SANDS,

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United States District Court
For the Northern District of California

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No. C 10-5315 CW

Petitioner,

ORDER DENYING
PETITION FOR WRIT
OF HABEAS CORPUS

v.
GREG LEWIS, Acting Warden, and
THE ATTORNEY GENERAL OF THE STATE
OF CALIFORNIA,
Respondents.
________________________________/

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Philip Leo Sands petitions the Court for a writ of habeas

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corpus on the grounds that his constitutional rights were violated

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due to the admission of illegally obtained wiretap evidence,

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prosecutorial misconduct and ineffective assistance of counsel at

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trial.

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petition.

For the reasons discussed below, the Court DENIES the

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18

BACKGROUND
On October 11, 2005, the San Francisco District Attorney

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charged Petitioner with crimes arising from two separate

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incidents.

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All facts are taken from the appellate record.

On September 14, 2001, Robin Clarke was stabbed twice in the

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abdomen during an altercation with a group of men, causing life

23

threatening injuries to his liver.

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trial, Clarke identified Petitioner as the person who stabbed him.

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A few days later, and again at

Petitioner was arrested and charged in San Francisco

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Superior Court with assault on Clarke.

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and remained out on bail in August 2003.

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He posted $100,000 bail
The court records

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indicated that Robert Ramirez was ordered to return to court to

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testify as a witness in the assault case.

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Numerous witnesses testified at trial that after the stabbing

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the relationship between Petitioner and Robert Ramirez changed.

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Robert Ramirez's brother Michael testified that Petitioner had

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questioned Robert Ramirez stating, "Someone snitched.

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snitched.

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testified that, when asked directly whether he stabbed Clarke,

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Petitioner failed to deny it.

United States District Court
For the Northern District of California

10

What did you say? What did you say?”

Someone

Another witness

On the evening of July 11, 2003, Ryan Crowley testified that

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he was driving from North Beach to Daly City with Brendan Burke

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and Robert Ramirez in his car around 1:30 or 2:00 a.m.

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testified that Burke was “practically incapacitated” and passed

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out in the car on the way to Daly City.

Crowley

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While on the freeway, Crowley's car ran out of gas and he and

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Robert Ramirez pushed it onto the Ocean Avenue off ramp and parked

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it on the right side of the road.

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and when he returned Robert Ramirez told him that Michael

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Debergerac's vehicle had driven by, and that Petitioner was with

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Debergerac.

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changed and that it seemed that “he wanted to get out of there.”

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After refilling the gas tank, the men got back into the car and

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proceeded westbound on the Ocean Avenue exit.

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Crowley left to buy gasoline

Crowley testified that Robert Ramirez's attitude had

Crowley drove through a red light and was stopped by a

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California Highway Patrol (CHP) officer.

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Crowley for drunken driving and gave Robert Ramirez the keys to

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Crowley's Oldsmobile, instructing him to drive the car into the

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nearby City College parking lot.

The officer arrested

The CHP officers told Robert
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1

Ramirez not to drive the car away, and at 3:33 a.m. the officers

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left to take Crowley to jail.

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That same evening, Debergerac was driving a friend home and

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took the Ocean Avenue exit.

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Ramirez standing next to a car pulled over on the shoulder.

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Debergerac testified that he called Petitioner on his cell phone

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and reported that he had seen “Rob on the freeway stuck” on the

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Ocean Avenue off ramp.

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home.

United States District Court
For the Northern District of California

10

While on the off ramp, he saw Robert

Debergerac testified that he then went

Michael Ramirez received a call from Robert Ramirez asking

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for a ride home from the City College campus.

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two other friends, to pick him up.

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got out of the car and saw that the driver's side window of

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Crowley's Oldsmobile was broken.

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that there was “blood everywhere.”

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He went, along with

Upon arrival, Michael Ramirez

He opened the door and noticed

At 3:48 a.m., the San Francisco Emergency Communications

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Department received a 911 call from a person at the City College

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parking lot reporting an emergency.

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scene and officers recovered spent bullet casings from the

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driver's side of the Oldsmobile.

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the ground, and three expended bullets were recovered from the

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inside of the car.

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the front passenger compartment door.

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examiner, Robert Ramirez's death was caused by twenty-two gunshot

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wounds to the body and a total of thirty-three gunshot injuries.

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The death was ruled a homicide.

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The police responded to the

Thirty bullet casings were on

The police later retrieved five bullets from
According to the medical

Petitioner's brother-in-law, Daniel DeVera, testified that
during the first week of August 2003, Petitioner came to his home
3

1

with a “green bag, pouch” and asked DeVera to “keep it” for him.

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When DeVera asked what it was, Petitioner told DeVera that it was

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a gun.

DeVera placed the gun and bag in a closet.

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In October 2003, the San Francisco District Attorney obtained

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a court order allowing a thirty-day interception of communications

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to and from a number of “target telephones,” including

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Petitioner's home and cell phones.

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on October 6, 2003.

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and played for the jury.

Monitoring of the calls began

An October 7, 2003 telephone call was taped
The taped call was a message from

United States District Court
For the Northern District of California

10

Petitioner asking “Daniel” to “hold on to that . . . for me for a

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while for safekeeping.”

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Petitioner were also played for the jury.

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Several calls between Debergerac and

On October 15, 2003, DeVera consented to a search of his

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home, during which he led the police to another house he owned,

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where they seized the gun.

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Cobray model SGM11-2A .380-caliber firearm with three magazines

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that was missing its barrel.

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thirty casings from the scene of Robert Ramirez's murder were

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discharged by the Cobray firearm, though the missing barrel made

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it difficult to determine whether the slugs recovered at the crime

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scene also came from the weapon.

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holding two guns, the firearms expert testified that the weapon

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held in his left hand was consistent with a Cobray-type M10 or M11

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firearm.

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The weapon seized from DeVera was a

The firearms expert opined that all

Shown a photograph of Petitioner

Mark Nikolov and Michael Hurley testified that they had seen

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a “Uzi" type weapon in Petitioner's bedroom years earlier.

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trial, both were shown a photograph of Petitioner holding a weapon

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4

At

1

and said that it looked like the one they had seen in Petitioner's

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bedroom.

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A Sprint/Nextel engineer, qualified as an expert in the

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field of designing and maintaining wireless networks for his

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employer, plotted a map showing the “footprints” of the different

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cell sites triggered by Petitioner and Debergerac's cell phones on

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the night of the murder.

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of the City College parking lot was serviced by the Glen Park cell

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site.

United States District Court
For the Northern District of California

10

The engineer testified that the location

The cell phone records showed that Debergerac called

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Petitioner from within the Glen Park cell site a number of times

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just prior to 3:00 a.m. on July 12, 2003.

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triggered the Skyline cell site at 2:57 a.m. and triggered the

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same cell site one minute later.

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between them, at 3:23 a.m., Petitioner's cell phone triggered the

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Glen Park cell site and called Debergerac's phone, which triggered

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the Kezar cell site.

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triggered the Glen Park cell site.

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information regarding certain other calls made on Petitioner's

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cell phone later that day.

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Petitioner's cell phone

After several other calls

At 3:37 a.m., Petitioner's cell phone again
The records provided further

Petitioner was charged in an amended information filed on

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October 11, 2005.

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conclusion of trial, the jury found Petitioner guilty as charged.

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On December 20, 2005, Petitioner filed a motion for new trial,

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which the trial court denied on December 30, 2005.

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court sentenced Petitioner to imprisonment for thirty-four years

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to life without the possibility of parole, plus an additional

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twenty-five years to life.

A jury trial began the following day.

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At the

The trial

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Petitioner filed a timely appeal on January 5, 2006.

On

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October 31, 2008 the California Court of Appeal affirmed the

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judgment in an unpublished opinion.

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California Supreme Court denied two separate, pro se, petitions

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for writ of habeas corpus.

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Supreme Court denied the petition for review of the direct appeal.

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On November 10, 2010, the California Supreme Court denied a

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petition for writ of habeas corpus.

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Petitioner filed a petition for writ of habeas corpus in this

United States District Court
For the Northern District of California

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Court.

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On March 19, 2008, the

On February 11, 2009, the California

On November 23, 2010,

Cause.

On December 1, 2010, this Court issued the Order to Show

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LEGAL STANDARD
This petition is brought under 28 U.S.C. § 2254(d), the

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Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

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Under AEDPA, a district court may not grant a petition challenging

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a state conviction or sentence on the basis of a claim that was

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reviewed on the merits in state court unless the state court's

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adjudication of the claim:

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contrary to, or involved an unreasonable application of, clearly

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established Federal law, as determined by the Supreme Court of the

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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

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presented in the state court proceeding."

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decision constitutes an unreasonable application of Supreme Court

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law if the state court's application of the law to the facts was

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not merely erroneous, but "objectively unreasonable."

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Andrade, 538 U.S. 63, 75 (2003).

"(1) resulted in a decision that was

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28 U.S.C. § 2254(d).

A

Lockyer v.

1

Moreover, habeas relief is warranted only if the

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constitutional error at issue is structural error or had a

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"substantial and injurious effect or influence in determining the

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jury's verdict."

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(quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)).

Penry v. Johnson, 532 U.S. 782, 796 (2001)

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8
9

DISCUSSION
I.

Exhaustion
Prisoners in state custody who wish to challenge collaterally

in federal habeas proceedings either the fact or length of their

United States District Court
For the Northern District of California

10

confinement are required first to exhaust state judicial remedies,

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either on direct appeal or through collateral proceedings, by

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presenting the highest state court available with a fair

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opportunity to rule on the merits of each and every claim they

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seek to raise in federal court.

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There appear to be claims that are unexhausted in this petition,

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although Respondents do not raise this issue in their answer.

See 28 U.S.C. § 2254(b), (c).

17

To comply with the fair presentation requirement, a claim

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must be raised at every level of appellate review; raising a claim

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for the first time on discretionary review to the state's highest

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court is insufficient.

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Cir. 2004).

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the petition for writ of habeas corpus before the California

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Supreme Court:

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the claim for violation of due process based on the alleged

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failure of law enforcement to seal the wiretap communications.

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The general rule is that a federal district court must dismiss a

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federal habeas petition containing any claim as to which state

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remedies have not been exhausted.

Casey v. Moore, 386 F.3d 896, 918 (9th

Here, two claims were raised for the first time in

the ineffective assistance of counsel claim and

See Rose v. Lundy, 455 U.S.
7

1

509, 522 (1982).

2

district court may deny it even if it includes unexhausted claims.

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See 28 U.S.C. § 2254(b)(2).

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5

II.

However, if the petition is without merit the

The Wiretap

Petitioner claims that the trial court committed prejudicial

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error when it allowed illegally intercepted phone calls made by

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Petitioner to be introduced into evidence, thus violating his due

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process rights.

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intercepting his phone calls did not conform with the federal

Petitioner argues that the procedures followed in

United States District Court
For the Northern District of California

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wiretapping statute, Title III of the Omnibus Crime Control and

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Safe Streets Act of 1968, 18 U.S.C. §§ 2510, et seq. (1976), and

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therefore admission of this evidence violated his right to due

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process under the Fifth and Fourteenth Amendments.

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contends that law enforcement officials failed to demonstrate the

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requisite necessity to obtain a warrant for the wiretaps.

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Petitioner claims that the state court record fails to demonstrate

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that the tapes of the intercepted calls were sealed pursuant to

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state and federal statutes.

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First, he

Second

The federal wiretapping statute applies to intercepted

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communications used against defendants in state court.

21

Llamas-Almaguer v. Wainwright, 666 F.2d 191, 193-94 (5th Cir.

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1982); Hussong v. Warden, 623 F.2d 1185, 1187-91 (7th Cir. 1980).

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However, there is no clearly established Supreme Court precedent

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holding that a violation of the Act may result in a due process

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claim cognizable in federal habeas corpus.

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§ 2254(d); see also Key v. Walker, 2009 WL 3878070 (N.D. Cal.)(not

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reported).

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question presented,’ the state court’s decision cannot be an

See

See 28 U.S.C.

“If Supreme Court cases ‘give no clear answer to the

8

1

unreasonable application of clearly established federal law.”

2

Ponce v. Felker, 606 F.3d 596, 604 (9th Cir. 2010) (quoting Wright

3

v. Van Patten, 552 U.S. 120, 126 (2008)).

4

Petitioner cites United States v. Giordano, which upheld the

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suppression of wiretap evidence where the district court

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determined that law enforcement did not comply with the Act.

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U.S. 505, 512 (1974).

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constitutional violation, much less a due process violation.

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decision of the trial court to admit the wiretap evidence in this

416

However, that case does not identify a
The

United States District Court
For the Northern District of California

10

case was not contrary to or an unreasonable application of

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applicable federal law as determined by the United States Supreme

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Court.

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III. Prosecutorial Misconduct
Petitioner contends that pervasive misconduct by the

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prosecutor denied him a fair trial.

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attacked defense counsel's integrity and questioned Petitioner on

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inadmissible matters.

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nothing improper, but even if she had, Petitioner was not

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prejudiced by it.

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He claims that the prosecutor

Respondents argue that the prosecutor did

Prosecutorial misconduct is cognizable in federal habeas

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corpus.

22

due process and not the broad exercise of supervisory power.

23

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

24

process is violated when a prosecutor's misconduct renders a trial

25

"fundamentally unfair."

26

219 (1982) ("the touchstone of due process analysis in cases of

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alleged prosecutorial misconduct is the fairness of the trial, not

28

the culpability of the prosecutor").

The appropriate standard of review is the narrow one of
See

The right to due

See id.; Smith v. Phillips, 455 U.S. 209,

9

1

The first factor in determining whether misconduct amounts to

2

a violation of due process is whether the trial court issued a

3

curative instruction.

4

weight of evidence of guilt.

5

U.S. 1, 19 (1985) (finding "overwhelming" evidence of guilt) with

6

United States v. Schuler, 813 F.2d 978, 982 (9th Cir. 1987) (in

7

light of prior hung jury and lack of curative instruction, new

8

trial required after prosecutor's reference to defendant's

9

courtroom demeanor).

The court may also take into account the
Compare United States v. Young, 470

Another factor is whether the misconduct was

United States District Court
For the Northern District of California

10

isolated or part of an ongoing pattern.

11

F.2d 805, 809 (9th Cir. 1987).

12

whether the misconduct relates to a critical part of the case.

13

See Giglio v. United States, 405 U.S. 150, 154 (1972).

14

the court may look at whether a prosecutor's comment misstates or

15

manipulates the evidence.

16
17
18

See Lincoln v. Sunn, 807

The court may also consider

Finally,

See Darden, 477 U.S. at 182.

A. Alleged disparagement of Defense Counsel
During rebuttal in closing arguments the prosecutor made the
following remarks,

19
20
21
22
23
24
25
26
27

“Defense counsel is a compelling speaker. All the
more compelling when he's able to ignore evidence,
when he's able to fabricate evidence.”
“Defense counsel says there's no evidence that
[Petitioner] carries a knife. That's true, there was
no evidence presented. Sometimes evidence does not
come in at trial.
“You're right, you don't. You know why? Because
defense counsel objected to [C]larke saying it. He
doesn't get the benefit of implying things that he
kept you from hearing. That's not fair. That's not
justice."

28
10

1

Respondents' Ex. B at 8-9
Petitioner contends that these remarks constituted misconduct.

2
However, defense counsel failed to object timely, waiting until
3
the next day to raise the issue with the trial judge.

The judge

4
found that no admonition was warranted but did add an instruction
5
reminding the jury that statements made by counsel during closing
6
arguments were not evidence.
7
B. Questioning on Inadmissible Matters
8
Petitioner alleges that the prosecutor continually attempted
9
impermissibly to introduce evidence of prior convictions.

In one

United States District Court
For the Northern District of California

10
example the prosecutor asked Petitioner why he ran from the police
11
if he did not know that he was a suspect in Clarke's stabbing,
12
implying he had other cause to run from law enforcement.

Defense

13
counsel objected to the questioning as irrelevant, prejudicial and
14
misconduct.

While the trial court sustained the objection,

15
defense counsel did not request an admonishment.
16
Petitioner also alleges that the prosecutor questioned him
17
about booking photos in order to insinuate an inadmissible prior
18
arrests.

Here again defense counsel failed to raise a

19
prosecutorial misconduct objection.

Moreover, only Petitioner saw

20
the photos, which were shown to him for the purpose of answering
21
questions about how his looks had changed over the years.

These

22
pictures were never shown to the jury and, as the appellate court
23
noted, it was Petitioner, not the prosecutor, who referred to the
24
pictures as "booking photos."
25
Finally Petitioner argues that the prosecutor asked him
26
whether he had ever used a weapon in or after a fight.

After

27
Petitioner replied in the negative, she asked, "You have backed up
28
11

1

Robert Ramirez after he's gotten into a fight by going home and

2

getting a gun; haven't you?"

3

the admissibility of the line of questioning, and the objection

4

was sustained.

5
6

Here, defense counsel objected to

C. Procedural Default
The state appellate court found that the claims of
prosecutorial misconduct were procedurally defaulted.

8

court will not review questions of federal law decided by a state

9

court if the decision also rests on a state law ground that is

10
United States District Court
For the Northern District of California

7

independent of the federal question and adequate to support the

11

judgment.

12

Ninth Circuit has recognized and applied the California

13

contemporaneous objection rule in affirming denial of a federal

14

petition on grounds of procedural default where there was a

15

complete failure to object at trial.

16

F.3d 1055, 1058 (9th Cir. 2005); Paulino v. Castro, 371 F.3d 1083,

17

1092-93 (9th Cir. 2004); Vansickel v. White, 166 F.3d 953, 957-58

18

(9th Cir. 1999).

19

A federal

Coleman v. Thompson, 501 U.S. 722, 729-30 (1991).

The

Inthavong v. Lamarque, 420

In cases in which a state prisoner has defaulted his federal

20

claims in state court pursuant to an independent and adequate

21

state procedural rule, federal habeas review of the claims is

22

barred unless the prisoner can demonstrate cause for the default

23

and actual prejudice as a result of the alleged violation of

24

federal law, or demonstrate that failure to consider the claims

25

will result in a fundamental miscarriage of justice.

26

U.S. at 750.

27

counsel claim to show cause for the procedural default, and argues

28

that counsel's failure to object prejudiced him.

Coleman, 501

Petitioner raises an ineffective assistance of

12

These claims

1

will be discussed below, and are denied.

2

the grounds of prosecutorial misconduct is denied.

3
4

IV.

The claim for relief on

Ineffective Assistance of Counsel

Petitioner argues that his counsel was ineffective and this

5

resulted in both the cause for the default of his claims of

6

prosecutorial misconduct and an independent claim for habeas

7

relief.

8

establishing constitutionally ineffective assistance of counsel,

9

but attorney error short of constitutionally ineffective

A petitioner may show cause for a procedural default by

United States District Court
For the Northern District of California

10

assistance of counsel does not constitute cause.

11

White, 166 F.3d 953, 958 (9th Cir. 1999)(quoting Murray v.

12

Carrier, 477 U.S. 478, 488 (1986)).

13

Vansickel v.

To establish ineffective assistance of counsel, a petitioner

14

must show that (1) counsel made errors so serious that counsel was

15

not functioning as the counsel guaranteed the defendant by the

16

Sixth Amendment, and (2) the deficient performance prejudiced the

17

defense such that "there is a reasonable probability that, but for

18

counsel's unprofessional errors, the result of the proceeding

19

would have been different."

20

668, 694 (1984).

21

sufficient to undermine confidence in the outcome.

22

Hatcher, 231 F.3d 640, 644 (9th Cir. 2000)(quoting Strickland, 466

23

U.S. at 687).

24

Strickland v. Washington, 466 U.S.

A reasonable probability is a probability
Loveland v.

Petitioner's ineffective assistance claim is based on his

25

counsel's failure to make contemporaneous objections to the

26

alleged prosecutorial misconduct or request appropriate curative

27

admonitions, thus prejudicing him at trial and forfeiting those

28

claims for appeal.

Defense counsel supports this argument in an
13

1

affidavit where he asserts that these omissions were not tactical

2

decisions at trial, but rather inadvertent errors.

3

counsel's failure to raise the objection of prosecutorial

4

misconduct and request relevant curative admonitions may have been

5

an error in hindsight, his conduct did not fall outside of the

6

"wide range of reasonable professional assistance."

7

Strickland, 466 U.S. at 689; Wildman v. Johnson, 261 F.3d 832, 838

8

(9th Cir. 2001).

9

Although

See

Even if counsel made errors, in order to prevail on a claim

United States District Court
For the Northern District of California

10

of constitutionally ineffective assistance and meet the prejudice

11

requirement for overcoming procedural default Petitioner must show

12

that the deficient performance harmed the defense such that "there

13

is a reasonable probability that, but for counsel's unprofessional

14

errors, the result of the proceeding would have been different."

15

Strickland, 466 U.S. at 694.

16

Even if the prosecutor did err in all of the instances cited

17

by Petitioner, it would still be insufficient to result in a trial

18

that was fundamentally unfair, so as to violate Petitioner's right

19

to due process.

20

There was substantial evidence against Petitioner, including

21

cell phone records showing him moving to the scene of the crime

22

during the critical fifteen minute period when the murder

23

occurred, testimony as to motive from numerous witnesses, and

24

testimony, along with a corroborating recorded conversation, from

25

Petitioner's brother-in-law that Petitioner asked him to hold a

26

gun, which an expert witness opined fired all thirty bullet

27

casings found at the scene of the murder.

28

was able to present a coherent defense, and testified on his own
14

Moreover, Petitioner

1

behalf.

2

by attorneys during closing argument were not evidence to be

3

considered.

4

was fundamentally fair, despite the insinuations made by the

5

prosecutor.

The jury was instructed that questions and comments made

The appellate court reasonably found that the trial

6

In light of the evidence presented at trial it is not

7

probable that, had counsel objected to the alleged prosecutorial

8

misconduct and requested curative admonitions, there would have

9

been a different decision in this case.

For these reasons, the

United States District Court
For the Northern District of California

10

claim for ineffective assistance of counsel, as well as the claim

11

of prosecutorial misconduct, is denied.

12
13
14

CONCLUSION
For the forgoing reasons, the petition for habeas relief is
DENIED.

15

The Court must rule on a certificate of appealability.

16

Rule 11(a) of the Rules Governing § 2254 Cases, 28 U.S.C. foll.

17

§ 2254 (requiring district court to rule on certificate of

18

appealability in same order that denies petition).

19

of appealability should be granted "only if the applicant has made

20

a substantial showing of the denial of a constitutional right."

21

28 U.S.C. § 2253(c)(2).

See

A certificate

22

"Where a district court has rejected the constitutional

23

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

24

straightforward: the petitioner must demonstrate that reasonable

25

jurists would find the district court's assessment of the

26

constitutional claims debatable or wrong."

27

U.S. 473, 484 (2000).

28

the habeas petition and a general assessment of their merits.

Slack v. McDaniel, 529

This requires an overview of the claims in

15

It

1

does not require full consideration of the factual or legal bases

2

adduced in support of the claims.

3

322, 336 (2003).

4

will succeed.

5

1025 (9th Cir. 2000)(issuance of COA is not precluded merely

6

because petitioner cannot meet standard for actually obtaining

7

habeas relief).

8

underlying constitutional claim, not the resolution of that

9

debate.

United States District Court
For the Northern District of California

10

Miller-El v. Cockrell, 537 U.S.

Nor does it require a showing that the appeal

Id.; accord Lambright v. Stewart, 220 F.3d 1022,

The question is the debatability of the

Miller-El, 537 U.S. at 342.

The Court finds that reasonable jurists viewing the record

11

could find the Court's assessment of the claims both of

12

prosecutorial misconduct and ineffective assistance of counsel

13

"debatable or wrong."

14

motion for a certificate of appealability is GRANTED with respect

15

to these two claims.

Slack, 529 U.S. at 484.

Accordingly, the

16
17

IT IS SO ORDERED.

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19
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Dated: 11/23/2011

CLAUDIA WILKEN
United States District Judge

21
22
23
24
25
26
27
28
16