Jackson v. Foulk

Filing 40

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS. Signed by Judge Saundra B Armstrong on 8/21/17. (Attachments: # 1 Certificate/Proof of Service)(dtmS, COURT STAFF) (Filed on 8/21/2017)

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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9 CLIFFORD L. JACKSON, JR.,
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Petitioner,

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Case No: C 13-05407 SBA (PR)
ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS

vs.

13 NEIL MCDOWELL, Acting Warden,
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Respondent.

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Following a retrial in the Monterey County Superior Court in 2011, a jury convicted

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Petitioner Clifford L. Jackson, Jr. (“Petitioner”) of two counts of attempted criminal threats.

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The trial court found true three prior convictions for purposes of California’s Three Strikes

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law and imposed a sentence of 35 years to life. Petitioner brings the instant pro se habeas

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action under 28 U.S.C. § 2254 to challenge his conviction and sentence. The petition raises

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the following three claims: (1) the prosecutor’s closing argument shifted the burden of

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proof in violation of Petitioner’s constitutional right to due process; (2) Petitioner’s trial

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counsel provided ineffective assistance by not objecting to the argument and by presenting

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a deficient closing argument; and (3) the enhancement of Petitioner’s sentence with his

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prior convictions under California’s Three Strikes law violates his rights under the Eighth

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Amendment. Having read and considered the papers filed in connection with this matter

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and being fully informed, the Court hereby DENIES the Petition for the reasons set forth

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below.

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I.

GROUND
BACKG
A.

STATEMENT OF FACTS
T
S

The California Cou of Appe summari
urt
eal
ized the fac of Petitio
cts
oner’s offen as
nse
lows1:
foll
Rosema and Wil
ary
lliam Roger owned a house in Se
rs
easide, Cali
ifornia,
which they had ren to Judi Moore. I or about July 2004, they caused
t
nted
ith
In
d
a notice of eviction to be serv upon M
e
n
ved
Moore. Moor agreed to move out
re
o
and term
minate her lease. On Ju 22, 2004 Rosemar and William [fn.]
l
uly
4,
ry
met Mo
oore and Mo
oore’s fathe at the hou in order to inspect the
er
use
r
premise and recov the key. The house was empty of most fu
es
ver
.
e
y
urniture and
d
“piles of things we all over the place.” They found defendant, an
o
ere
d
acquain
ntance of Moore’s, slee
M
eping on the floor in a back bedro
e
oom.
ary
fendant he was trespass
w
sing and dir
rected him to collect h
his
Rosema told def
things and get out. Defendant agreed to l
a
t
leave and began pickin up his
ng
belongi
ings. After defendant got most of his things o
d
g
outside in th yard,
he
Rosema heard hi mumble that he wa a Vietnam veteran an saw him
ary
im
e
as
m
nd
m
make gestures tow
ward her hus
sband as if t say, “‘W are you looking at
to
What
u
t?
en
red
endant had all his thing
gs
What’s your problem?’ “Whe it appear that defe
,
y
he
ot
fendant to
outside, Rosemary stood in th doorway . She did no want def
come back into the house “be
e
ecause he sta
arted gettin anxious a seemed
ng
and
d
etting irritat
ted.” “[H]e said he wo
e
ould blow o heads of And
our
ff.
to be ge
[Moore father was there, an her kids, and my hu
e’s]
w
nd
,
usband, and myself
d
when th happene He was a little irate just seem off, and at this poin
hat
ed.
e,
med
nt
my husb
band called the cops.” Rosemary was not su but she b
d
ure,
believed th
hat
defenda had men
ant
ntioned both “blowing our heads o and “chopping ou
h
off”
ur
heads off.” She als thought he said som
o
so
h
mething abou a rifle. She was
ut
afraid “because he kept gettin more anx
“
ng
xious.” He w angry a raising
was
and
his voic Rosemar “feared for everybo
ce.
ry
f
ody’s safety who was a the house
y
at
e.
I didn’t know what he was go
t
oing to do.” In fact, Mo
oore’s fathe had
er
encoura
aged William to call th police, te
he
elling him th defenda “was a
hat
ant
very da
angerous ma
an.”
W
ce,
nt
ed
and
After William called the polic defendan continue “ranting a raving.”
Rosema and Wil
ary
lliam, along with Moo re and her f
g
family, rem
mained in the
front ro
oom of the house while defendant paced outs
h
e
side. Althou she did
ugh
not try to leave, or lock hersel in a room to get awa from def
t
r
lf
m
ay
fendant,
Rosema did take his threats seriously. She was “a
ary
e
s
afraid for [h life” an
her]
nd
stood cl
lose to an ir fireplac poker in t hallway behind her. When
ron
ce
the
y
asked if she believ defenda was “imm
f
ved
ant
mediately g
going to kill” her,
Rosema respond “I didn’t think any
ary
ded,
ything one w or the o
way
other, other
r
than I didn’t know what he was going to do next.” S was in immediate
d
w
w
She
fear for her life.
r
m
arning them to be caref because
m
ful
William also recalled Moore’s father wa
defenda was “vio
ant
olent.” Moo
ore’s father told them t defend once
that
dant
“assault someon with a kn
ted
ne
nife.” Willia testified that, after his wife tol
am
d
ld
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This summary is presumed correct. See Hernande v. Small, 282 F.3d 1
s
c
ez
,
1132, 1135
n.1 (9th Cir. 20
002).
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defenda to leave, defendant became “v
ant
t
very agitated fidgety, k
d,
kind of
going back and for
b
rth.” After he removed his belong
h
d
gings, he we back in
ent
and said “‘No, I’m not leavin
d,
m
ng.’” It was then he sa “‘I’m going to get
s
aid,
an AK– and blow all your heads off.’” He was a
–47
h
”
angry and sh
houting and
d
may hav also said he was go
ve
d
oing to cut th heads o William called the
their
off.
m
e
police and defenda went ou
a
ant
utside and sa down. W
at
William rema
ained on the
e
front po
orch. He saw no weapo but took defendant’ statement “as a viable
w
on
’s
t
threat” and kept hi eyes on him.
is
h
B
onded to th scene. He took statem
he
e
ments from
m
Officer Nicholas Borges respo
ary
lliam and fr
rom Judith M
Moore. Mo
oore’s descr
ription of
Rosema and Wil
defenda
ant’s alleged threats wa consisten with wha Rosemary and
d
as
nt
at
y
William had report When Borges arre
m
ted.
B
ested defend
dant, defend told
dant
him tha “[Borges had] fucked up, and th they wer going to cut
at
d
hat
re
[Borges head of
s’s]
ff.”
M
h
b
ar
nt
Judith Moore and her father both testified that they did not hea defendan
make an threats. Defendant was “bellig
ny
D
w
gerent and ru
ude,” accor
rding to
Judith Moore. And he was no happy abo having t leave, ac
M
d
ot
out
to
ccording to
Moore’s father. Bu “he wasn raving an going on Moore’s father
ut
n’t
nd
n.”
s
h
d
hat
ant
e
s.
denied having told William th defendan might be dangerous
Peo v. Jack
ople
kson, 178 Ca App. 4th 590, 593-9 (2009) (
al.
h
95
(“Jackson I”
”).
B.

PROCEDURA HISTORY
AL
Y
1.
1

Conv
viction and Sentence
d

Petition was initi
ner
ially charge in an am
ed
mended infor
rmation wit two coun of
th
nts

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mak
king crimin threats in violation of Californ Penal Co § 422. Id. The am
nal
n
nia
ode
mended

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info
ormation fu
urther allege that Petit
ed
tioner had s
suffered thr prior stri convictions
ree
ike

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(Ca
alifornia Pen Code § 1170.12(c)
nal
)(1)) and tw prior seri
wo
ious felonie (id. § 667
es
7(a)(1)),

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and that he had committed a felony while out on bail (id. § 12022.1). Jackson I, 178 Cal.
d
d
w
n

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App 4th at 595.
p.

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After th first trial, the jury ac
he
,
cquitted Pet
titioner of m
making crim
minal threat against
ts

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Ros
semary and William Rogers, but convicted h of the le
d
R
c
him
esser includ offense of
ded

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atte
empted crim
minal threat (California Penal Cod §§ 422, 6
a
de
664). Id. P
Petitioner ad
dmitted the

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rem
maining allegations. Id He was sentenced to twenty-fiv years to life in priso Id.
d.
s
o
ve
on.

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Peti
itioner appe
ealed the ju
udgment to the Californ Court of Appeal.
t
nia

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In 2009 the Califo
9,
ornia Court of Appeal r
reversed Pe
etitioner’s ju
udgment. T state
The

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app
pellate court explained that the cri of attem
t
ime
mpted crimi threat i
inal
includes a

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o
“rea
asonablenes element,” and that th trial cou erroneou failed to instruct th jury to
ss
he
urt
usly
he
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consider whether the intended threat reasonably could have caused sustained fear under the

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circumstances. Id. at 596-601. Specifically, the court held as follows:

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[I]n order to support a conviction for attempted criminal threat
the jury must find that the defendant specifically intended to
threaten to commit a crime resulting in death or great bodily
injury with the further intent that the threat be taken as a threat,
under circumstances sufficient to convey to the person
threatened a gravity of purpose and an immediate prospect of
execution so as to reasonably cause the person to be in
sustained fear for his or her own safety or for his or her family’s
safety.

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Id. at 598.

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On remand, the prosecution filed an amended information. CT 1-5. The amended

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information charged two counts of attempted criminal threats, three prior strikes

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(California Penal Code § 1170.12) and two prior serious felony convictions (id. § 667(a)).2

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The amended information also included a misdemeanor resisting charge and on-bail

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enhancement allegations that were later dismissed. CT 1-5.

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At Petitioner’s retrial, Rosemary and William Rogers, as well as the arresting

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officer, Officer Nicholas Borges, again testified. In addition, the redacted testimony of

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Moore and her father (John Moore) from the previous trial was read into the record. CT

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115-116.

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On September 16, 2011, the jury convicted Petitioner as charged on each count of

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attempted criminal threat. CT 120-121; 5-A RT 1287-1288. In a bifurcated trial, the court

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found the prior conviction allegations true. CT 122; 4 RT 1507-1508; see also 8 RT 2114-

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2116.

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On December 16, 2011, the court sentenced Petitioner to two concurrent terms of

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thirty-five years to life in prison. 1CT 164, 223; 8 RT 2119. The sentence was imposed

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consecutively to a previously-imposed 2006 conviction and sentence of twenty-five years

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to life in Monterey County Superior Court No. SS041968A. 8 RT 2120.

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Petitioner had admitted these allegations at the first trial. See Jackson I, 178 Cal.
App. 4th at 595. CT 1-5.
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2.

Post-Conviction Appeals and Collateral Attacks

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Petitioner appealed the judgment to the California Court of Appeal, alleging a claim

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for ineffective assistance of counsel (“IAC”). In particular, Petitioner asserted that, during

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rebuttal argument, the prosecutor attempted to shift the burden of proof to the defense, and

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that his trial counsel was ineffective for failing to object to the prosecutor’s remarks.

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People v. Jackson, No. H036769, 2012 WL 4354933, *1 (Cal. Ct. App. Sept. 25, 2012)

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(“Jackson II”).

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On September 25, 2012, the California Court of Appeal affirmed the judgment, and
rejected Petitioner’s IAC claim. Id. at *4. The state appellate court denied rehearing.
Resp’t Ex. 7. The California Supreme Court denied review. Resp’t Ex. 8.

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In 2013, Petitioner filed a state habeas petition restating under federal and state law

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his IAC claim that had been rejected on direct review, and the California Supreme Court

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summarily denied the petition. Resp’t Ex. 9.

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On November 20, 2014, Petitioner filed the instant federal petition. On January 30,

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2015, the Court denied Respondent’s motion to dismiss and ordered proceedings stayed

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while Petitioner exhausted his newly-asserted sentencing claim (Claim Three). Dkt. 27.

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Petitioner filed a state habeas petition in the California Supreme Court raising his

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sentencing claim. Resp’t Ex. 10. On May 20, 2015, the California Supreme Court

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summarily denied the petition. Id.

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On August 6, 2015, this Court lifted the stay in the instant proceeding and issued an
Order to Show Cause. Dkt. 32.

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Respondent has filed an Answer, and Petitioner has filed a Traverse. Dkts. 34, 37.

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The matter is now fully briefed.

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II.

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

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

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

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unless: (1) the proceeding “resulted in a decision that was contrary to, or involved an
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1

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

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

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

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proceeding.” 28 U.S.C. § 2254(d)(1), (2).

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The first prong of § 2254 applies both to questions of law and to mixed questions of

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law and fact. See Williams (Terry) v. Taylor, 529 U.S. 362, 407-409 (2000). A state court

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decision is “contrary to” clearly established federal law “if the state court applies a rule that

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contradicts the governing law set forth in [Supreme Court] cases or if the state court

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confronts a set of facts that are materially indistinguishable from a decision of [the

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Supreme] Court and nevertheless arrives at a result different from [its] precedent.” Lockyer

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v. Andrade, 538 U.S. 63, 73 (2003) (internal quotation marks omitted). “When there is no

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clearly established federal law on an issue, a state court cannot be said to have

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unreasonably applied the law as to that issue.” Holley v. Yarborough, 568 F.3d 1091, 1098

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(9th Cir. 2009) (citing Carey v. Musladin, 549 U.S. 70, 76-77 (2006)).

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

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

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

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

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independent judgment that the relevant state-court decision applied clearly established

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federal law erroneously or incorrectly.” Williams (Terry), 529 U.S. at 411. Rather, the

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petitioner must show that the application of Supreme Court law was “objectively

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unreasonable.” Id. at 409; Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam).

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The second prong of § 2254 applies to decisions based on factual determinations.

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See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Under 28 U.S.C. § 2254(d)(2), a state

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court decision “based on a factual determination will not be overturned on factual grounds

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unless objectively unreasonable in light of the evidence presented in the state-court

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proceeding.” Miller-El, 537 U.S. at 340; see also Torres v. Prunty, 223 F.3d 1103, 1107

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(9th Cir. 2000).
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In deter
rmining wh
hether a state court’s de
e
ecision is co
ontrary to, o involves an
or

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unr
reasonable application of, clearly established federal law courts in this Circuit look to
a
d
w,

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the decision of the highes state cour to address the merits of the petitioner’s cla in a
f
st
rt
s
s
aim

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reas
soned decis
sion. See Ylst v. Nunn
Y
nemaker, 50 U.S. 797 803-804 (
01
7,
(1991); LaJ v.
Joie

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Tho
ompson, 217 F.3d 663, 669 n.7 (9 Cir. 200
9th
00). Moreov “a dete
ver,
ermination o a factual
of

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issu made by a State cou shall be presumed t be correc and the petitioner “
ue
urt
p
to
ct,”
“shall have

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the burden of rebutting th presumpt
r
he
tion of corre
ectness by c
clear and co
onvincing e
evidence.”

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28 U.S.C. § 22
U
254(e)(1).

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On fede habeas review, AE
eral
EDPA “imp
poses a high deferent standard for
hly
tial
d

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eva
aluating stat
te-court ruli
ings” and “demands th state-cou decision be given the benefit
hat
urt
ns

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of the doubt.” Renico v. Lett, 559 U.S. 766, 77 (2010) (in
t
U
73
nternal quo
otation mark omitted).
ks

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In applying the above stan
a
e
ndards on habeas revie this Cou reviews the “last re
h
ew,
urt
s
easoned

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dec
cision” by th state cou See Rob
he
urt.
binson v. Ig
gnacio, 360 F.3d 1044 1055 (9th Cir. 2004).
0
4,
h

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As expl
lained below Petitione did not co
w,
er
ontemporan
neously obj to the p
ject
prosecutor’s
s

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alle
eged burden
n-shifting ar
rgument in Claim One therefore, he has pro
e;
,
ocedurally d
defaulted on
n

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this claim from a federal habeas corp review. However, even thoug Petitione forfeited
s
m
h
pus
,
gh
er

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his due process claim, the state appellate court a
e
addressed th issue in the context of his
he
t

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Six Amendm IAC cl
xth
ment
laim premis on his tr counsel failure to object to the
sed
rial
l’s
o

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prosecutor’s re
ebuttal. See Jackson II 2012 WL 4354933, at *3-*4. M
e
I,
L
Meanwhile, the last
,

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reas
soned decis
sion as to Pe
etitioner’s IAC claim (
I
(Claim Two is the Ca
o)
alifornia Co of
ourt

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App
peal’s unpu
ublished dis
sposition iss
sued on Sep
ptember 25, 2012. See id. Finally there is
,
e
y,

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no reasoned de
r
ecision on his sentenci claim (C
h
ing
Claim Three which w summar denied
e),
was
rily

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by the Californ Suprem Court on May 20, 20
t
nia
me
015. Resp’t Ex. 10.
t

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III.
.

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DISCU
USSION
A.

CLAIMS BAS ON IMP
SED
PROPER RE
EBUTTAL ARGUMENT

Petition
ner’s first an second claims are p
nd
c
predicated u
upon brief r
remarks mad by the
de

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prosecutor dur
ring rebuttal argument. In Claim One, Petitio
.
oner conten that his due
nds

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process rights were violat because the prosec
ted
e
cutor’s argu
ument attem
mpted to shif the
ft
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burden of proof to the defense. In Claim Two, Petitioner argues that his trial counsel was

2

ineffective for failing to object to the prosecutor’s remarks. The facts pertinent to these

3

claims are summarized in Jackson II as follows:

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In People v. Jackson (2009) 178 Cal.App.4th 590, we reversed
defendant’s convictions of two counts of attempted criminal threat because
we concluded that attempted criminal threat includes a reasonableness
element and the jury at defendant’s trial was not instructed to consider
whether the intended threat reasonably could have caused sustained fear
under the circumstances. We held: “[I]n order to support a conviction for
attempted criminal threat the jury must find that the defendant specifically
intended to threaten to commit a crime resulting in death or great bodily
injury with the further intent that the threat be taken as a threat, under
circumstances sufficient to convey to the person threatened a gravity of
purpose and an immediate prospect of execution so as to reasonably cause
the person to be in sustained fear for his or her own safety or for his or her
family’s safety.” (Id. at p. 598.)

16

At defendant’s retrial, the trial court instructed the jury consistent
with our opinion as follows: “The defendant is charged in Counts One and
Two with attempted threats of violence. To prove that the defendant is
guilty of this crime, the People must prove that, one, the defendant took a
direct but ineffective step towards committing threats of violence. Two, the
defendant specifically intended to threaten a crime resulting in death or
great bodily injury. Three, with a further intent that the threat be taken as a
threat; four, under circumstances sufficient to convey to the person
threatened a gravity of purpose and an immediate prospect of execution;
and, five, so as to cause a reasonable person to be in sustained fear for his
or her safety, or for his or her family safety.”

17

Thereafter, the People argued the following points to the jury.

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“Now, when we’re talking about an attempt to threaten someone, the
Judge read the law to you, and I want to go over it in a little more detail
because it has a lot of language in it. Basically what it says is when
someone attempts to threaten—attempts to threaten someone with violence,
we have to prove the defendant took a direct but ineffectual step towards
committing threats of violence.”

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“And finally, could that kind of threat have caused a reasonable
person to be in sustained fear for himself or his wife, and under these
circumstances, her husband.”
Defendant then offered the following in his argument.
“So we look at the instruction, and we see that the People have t[he]
burden of proof. They have the burden of proof to prove a defendant guilty
beyond a reasonable doubt. They have the burden to prove every element.
[¶] Now, you know, it’s easy to say, well, you know, we—there’s five or
six things and there’s no question that these three or four things are proven,
and that’s it, and your job is done, and let’s go home. No. You have to look
at all of the parts of the instructions, all of the elements, and so on.”
*2 “So going again through the applicable law. We have talked about
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whether it’s proven beyond a reasonable doubt, lapse of time is not an
excuse for the People not to meet that burden, witnesses.”
In rebuttal, the People urged the following.
“Now, if these witnesses came in here seven years later and had
perfect recall of what happened and remembered every detail exactly right,
it would mean that they were lying, because no one can remember anything
from seven years ago, every detail. Defense attorney says that just because
it’s been seven years, does not reduce the burden of proof, and it doesn’t.
You don’t believe beyond a reasonable doubt that those defendants said
those words, then you must acquit him.”

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“But the bottom line here is there is no element that Mr. and Mrs.
Rogers were in fear. That is not an element of this crime. We always go
back to the elements of the crime, because we try to break the crime down
into simple pieces so the jury can follow it. Not everyone is very well
versed in the law to follow it as easily as we can, so the Judge—a very
good Judge—reads the instructions to you: one, two, three, four, five. Do
you find all five of those true? And then it is a crime that was committed.
And if you find them beyond a reasonable doubt, then he’s guilty. And
what the elements are is that a reasonable person under those circumstances
could be in sustained fear of that threat. So basically what you’re saying is
if that element is not met, that what you’re saying is it would be
unreasonable for someone to be in sustained fear when being told they’re
going to be killed. If someone comes into my office and tells me ‘I’m going
to go get my AK-47 and come back here and kill you,’ would it be
unreasonable of me to be in fear, in sustained fear, and to be in real fear,
no a momentary or fleeting fear? That’s what the language is. Sustained
fear means a period of time that is more than momentary fleeting or
transitory. I would argue to you that the Rogers are probably still in fear
today of that happening. But that’s not an element of the crime. We are not
talking about that. We are talking about what a reasonable person—any
reasonable person having this man under those circumstances say what he
say would they feel fear. I don’t believe there is a reasonable doubt as to
that.” (Italics added.)

19

Jackson II, 2012 WL 4354933*1-*2. Petitioner contends that the italicized statements in

20

the above-quoted passage improperly shifted the burden of proof to the defense, and that

21

his trial counsel should have objected to them.

8
9
10
11
12
13
14
15
16
17

22
23

1.

Due Process Claim

Petitioner first contends that the prosecutor impermissibly shifted the burden of

24

proof to the defense in violation of his Fourteenth Amendment right to due process. Dkt. 1

25

at 6. However, Petitioner failed to object to the remarks when they were made, and

26

admitted as much on appeal. Jackson II, 2012 WL 4354933 at *3. As a result, the state

27

appellate court deemed the claim waived based on California’s rule requiring a

28

contemporaneous objection to preserve a claim of improper argument by the prosecutor.
9

1

Id. (“When a defendant believes the prosecutor has made remarks constituting misconduct

2

during argument, he or she is obliged to call them to the court’s attention by a timely

3

objection” in order to preserve the claim on appeal”) (citing People v. Morales, 25 Cal. 4th

4

34, 43-44 (2001)).3

5

The failure to comply with a state’s contemporaneous objection rule results in a

6

procedural default which bars federal consideration of the issue, unless the petitioner can

7

show “cause” for the failure to comply with the state procedural rule and “prejudice”

8

arising from the default, or that the failure to consider the claim will result in a fundamental

9

miscarriage of justice. Coleman, 501 U.S. at 750. To establish cause, a petitioner must

10

show that “some objective factor external to the defense impeded counsel’s efforts to

11

comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986).4

12

To establish a “fundamental miscarriage of justice,” a petitioner must demonstrate “a

13

constitutional violation has probably resulted in the conviction of one who is actually

14

innocent.” Wood v. Ryan, 693 F.3d 1104, 1117-18 (9th Cir. 2012) (internal quotation

15

omitted). A claim of actual innocence is rarely met and must be based on reliable evidence

16

not presented at trial. Casey v. Moore, 386 F.3d 896, 921 n.27 (9th Cir. 2004).

17

In the instant proceeding, Petitioner does not make any showing of cause and

18

prejudice, and none is otherwise apparent from the record. Nor has Petitioner made any

19

showing of actual innocence in order to demonstrate a fundamental miscarriage of justice.

20

Having failed to demonstrate cause and prejudice or a fundamental miscarriage of justice,

21

the Court finds that Petitioner’s due process claim is procedurally barred. Fairbank v.

22

Ayers, 650 F.3d 1243, 1256 (9th Cir. 2011) (California’s contemporaneous objection rule

23

deemed to be an adequate and independent state ground for dismissal of a federal habeas

24

claim); Paulino v. Castro, 371 F.3d 1083, 1092-93 (9th Cir. 2004) (instructional error claim

25

3

Because the due process claim was waived, the state appellate court instead
construed Petitioner’s challenge as one for IAC. The Court addresses Petitioner’s related
26
IAC claim below.
27
28

4

If insufficient cause is shown, a court need not reach the prejudice question. Smith
v. Baldwin, 510 F.3d 1127, 1147 (9th Cir. 2007).
10

1

procedurally defaulted where state court ruled the claim was waived by failure to object to

2

instruction at trial).

3
4
5

Relief on Petitioner’s due process claim is DENIED.
2.

IAC Claim

Petitioner next contends that his trial counsel was ineffective for: (1) failing to

6

object to the prosecutor’s alleged burden-shifting argument; and (2) presenting a deficient

7

argument regarding whether Petitioner’s actions caused a reasonable person to be in

8

sustained fear. Dkt. 1 at 6.

9
10

a)

Applicable Law

The clearly established federal law governing IAC claims is set forth in Strickland v.

11

Washington, 466 U.S. 668 (1984). Under Strickland, a defendant must show that

12

(1) performance was deficient and that (2) the “deficient performance prejudiced the

13

defense.” Id. at 687. Counsel is constitutionally deficient if his or her representation “fell

14

below an objective standard of reasonableness” such that it was outside “the range of

15

competence demanded of attorneys in criminal cases.” Id. at 687-88 (internal quotation

16

marks omitted). Reviewing courts must “indulge a strong presumption that counsel’s

17

conduct falls within the wide range of reasonable professional assistance.” Id. at 689.

18

Where deficient performance is established, “[the] errors must be ‘so serious as to deprive

19

the defendant of a fair trial, a trial whose result is reliable.’” Harrington, 562 U.S. at 101

20

(quoting Strickland, 466 U.S. at 687). The Strickland standard applies to trial and appellate

21

counsel. Smith v. Murray, 477 U.S. 527, 535-36 (1986); Miller v. Keeney, 882 F.2d 1428,

22

1433 (9th Cir. 1989).

23

Under AEDPA, a federal court’s review of a state court’s decision on an IAC claim

24

is “doubly deferential.” Cullen v. Pinholster, 563 U.S. 170, 190 (2011). “[T]he question is

25

not whether counsel’s actions were reasonable. The question is whether there is any

26

reasonable argument that counsel satisfied Strickland’s deferential standard.” Harrington v.

27

Richter, 562 U.S. 86, 105 (2011). In other words, “[t]he pivotal question is whether the

28

state court’s application of the Strickland standard was unreasonable. This is different from
11

1

asking whether defense counsel’s performance fell below Strickland’s standard.” Griffin v.

2

Harrington, 727 F.3d 940, 945 (9th Cir. 2013)) (quoting Richter, 562 U.S. at 101).

3

b)

Failure to Object

4

The state appellate court reviewed Petitioner’s IAC claim based on the two-part test

5

articulated in Strickland. Jackson II, 2012 WL 4354933 at *3 (citing People v. Benavides,

6

35 Cal. 4th 69, 92-93 (2005) (following Strickland)). Upon reviewing the record and the

7

challenged statements in context, the state appellate court concluded that the prosecutor did

8

not shift the burden to Petitioner, defense counsel’s failure to object was not deficient, and

9

that there was no reasonable likelihood that the jury construed or applied the remarks in an

10
11

unconstitutional manner.
The state appellate court first set forth the applicable standard for evaluating claims

12

of misconduct by the prosecution, explaining that “[w]hen the claim of misconduct is based

13

on arguments or comments the prosecutor made before a jury,” the salient question is

14

“whether there is a reasonable likelihood that the jury construed or applied any of the

15

complained-of remarks in an objectionable fashion.” Id. If not, “the challenged statement

16

or argument [is] not misconduct,” and, by extension, “it would not be outside the range of

17

competence for counsel to fail to object.” Id. Even if the prosecutor engaged in

18

misconduct, defense counsel’s failure to object does not establish incompetence. Id.

19

Rather, the defendant “must show that counsel’s omission involved a critical issue, and that

20

the failure to object could not be explained as a reasonable trial tactic.” Id.

21

The state appellate court found that “the objected-to snippets” of the prosecutor’s

22

rebuttal argument “did not insist that an acquittal required the jury to find that it would be

23

unreasonable for someone to have sustained fear.” Id. at *4. Rather, such remarks “can be

24

interpreted as urging that an acquittal would equate to a conclusion that, under the

25

circumstances, it would be unreasonable for a person to be in sustained fear after being told

26

he or she was going to be killed.” Id. Importantly, the court emphasized that immediately

27

preceding the disputed remarks, the prosecutor reminded the jury that the elements of the

28

offense are “that a reasonable person under those circumstances could be in sustained fear
12

1

of that threat,” and that the prosecution bore the burden of proving each element of the

2

offense beyond a reasonable doubt. Id. In addition, the remarks also followed the trial

3

court’s instruction to the jury that “it must find beyond a reasonable doubt that the

4

reasonableness element of attempted criminal threat requires that the intended threat must

5

reasonably cause sustained fear.” Id. Thus, upon reviewing the record and the challenged

6

statements in context, the state appellate court held that the prosecution did not misstate the

7

reasonableness element or attempt to shift the burden of proof to the defense. Id.

8
9

The state appellate court also found no merit to Petitioner’s claim that his trial
counsel was ineffective by virtue of failing to object to the prosecution’s remarks. The

10

court explained that trial counsel may have refrained from objecting because he had

11

concluded that there was “no reasonable likelihood that the jury would construe or apply

12

the remarks to absolve the People of proving the reasonableness element”; or alternatively,

13

he did not feel that the remarks were sufficiently prejudicial to warrant an objection. Id.

14

The court concluded that, “[i]ndeed, the circumstances convince us that trial counsel’s

15

failure to object was because the supposed misconduct and any potential prejudice are more

16

apparent than real, more arguable on appeal than actual at trial.” Id.

17

Based on the record presented, the Court finds that the state appellate court’s

18

rejection of Petitioner’s IAC claim does not constitute an unreasonable application of

19

Strickland. See Richter, 562 U.S. at 101. Both the trial court and prosecutor correctly

20

explained the reasonableness element of attempted criminal threat, including that the

21

intended threat must reasonably cause sustained fear. Jackson II, 2012 WL 4354933 at *3.

22

The jury also was instructed that such element had to be proven beyond a reasonable doubt.

23

Id. Against that backdrop, it is clear that the prosecutor did nothing improper. Rather, his

24

remarks, while perhaps not a model of clarity, reflect nothing more than his attempt to

25

illustrate that a reasonable person would be in sustained fear if they were told that they

26

were going to be shot and killed. Because the prosecution’s remarks were not improper,

27

there was no reason for Petitioner’s trial counsel to interpose an objection. As such, trial

28

counsel’s failure to object is insufficient to sustain an IAC claim. See Morrison v. Estelle,
13

1

981 F.2d 425, 429 (9th Cir.1992) (the failure to make a futile objection does not constitute

2

ineffective assistance of counsel). Even if counsel’s performance were deficient, Petitioner

3

has made no showing that, but for counsel’s alleged error in failing to object, there is a

4

reasonable probability that the result of his trial would have been different.

5
6

Relief on Petitioner’s IAC claim based on trial counsel’s failure to object is
DENIED.

7

c)

8
9

Deficient Argument

Petitioner next claims that his trial counsel failed to comprehend the elements of the
charged offense and consequently failed to make any argument regarding whether the

10

prosecution had affirmatively established that “a reasonable person [was] . . . in sustained

11

fear.” Dkt. 1 at 8. The state appellate court rejected this claim for failure to demonstrate

12

prejudice. The court stated: “Even accepting defendant’s premise that trial counsel was

13

deficient for failing to argue the reasonableness element, defendant offers no discussion to

14

the effect that, had counsel made the reasonableness argument, the result of the proceeding

15

would have been different. His contention therefore fails.” Jackson II, 2012 WL 4354933,

16

*4.

17

The Court finds that the record does not support Petitioner’s contention that his trial

18

counsel failed to comprehend the elements of the offense of attempted criminal threats.

19

Despite Petitioner’s assertions to the contrary, defense counsel, in fact, expressly argued

20

that the prosecution failed to prove that the victims had experienced sustained fear. See

21

e.g., 5 RT 1273 (“They could have done a lot of things that . . . would show you and

22

demonstrate to you that they were in sustained fear. They did nothing.”). Petitioner

23

attempts to make much of counsel’s brief misstatement that the prosecution had to show

24

that Petitioner’s conduct “[caused] someone to be in sustained fear,” as opposed to the

25

actual language of the jury instruction that the conduct “caused a reasonable person to be in

26

sustained fear.” Dkt. 1 at 8 (emphasis added).5 Yet, almost immediately before making his

27

5

In response, the prosecutor objected, and the trial court reread the portion of the
instruction stating that element as “caused a reasonable person to be in sustained fear.” 5
28
RT 1269-1279.
14

1

erro
oneous reference to “so
omeone,” defense coun accura
d
nsel
ately recited that the sta
d
andard was

2

whe
ether the threat caused “a reasona person to be in sus
d
able
stained fear for his ow safety . . .
r
wn

3

.” 5 RT at 126 (emphasi added). Thus, coun
69
is
T
nsel’s one-ti misstate
ime
ement – wh was
hich

4

imm
mediately cu
ured by the trial court which re-re a portio of the pe
e
ead
on
ertinent jury instruction
y
n

5

– do not sug
oes
ggest, let alo establish, a lack of understand
one
f
ding regard
ding the elem
ments of the
e

6

cha
arge. In any event, eve if defense counsel could have p
y
en
e
presented a more comp
pelling

7

clos
sing argument, Petition has mad no show
ner
de
wing that the outcome a trial woul have
e
at
ld

8

bee any different.
en

9
10
11
12
13

Relief on Petitione IAC cla based o trial coun
o
er’s
aim
on
nsel’s deficient argume is
ent
DENIED.
B.

SENTENCING CLAIM
G
1.
1

Doub Jeopar
ble
rdy

Petition contends the enhan
ner
ncement of h sentence based on his prior co
his
e
onvictions

14

pur
rsuant to Ca
alifornia’s Three Strike law effec
T
es
ctively viola the Fift Amendm
ates
th
ment’s

15

Dou Jeopar Clause. Dkt. 1 at 6, 9. Howev the Sup
uble
rdy
6
ver,
preme Cour and the N
rt
Ninth

16

Circuit Court of Appeals have rejected such a c
o
claim. Witte v. United States, 515 U.S. 389,
e
5

17

400 (1995); se also Spen v. Texa 385 U.S 554, 559-60 (1967) (
0
ee
ncer
as,
S.
(upholding use of prior
r

18

con
nvictions to enhance se
entences for subsequen convictio even if i a sense d
r
nt
ons
in
defendant

19

must relitigate in sentenci proceed
ing
ding conduc for which he was alr
ct
h
ready tried)
).

20

Acc
cordingly, the Court fin no mer to this cla
t
nds
rit
aim. See Ja
ackson v. N
Nelson, 435 F.2d 553,

21

553 (9th Cir. 1971) (dism
3
1
missing cont
tentions of e
equal protec
ction, bill o attainder, double
of
,

22

jeop
pardy and ex post facto against re
e
o
ecidivist sta
atute as mer
ritless); see also Monge v.

23

Cal
lifornia, 524 U.S. 721, 734 (1998) (no violati of the D
4
)
ion
Double Jeop
pardy Claus by retrial
se
l

24

on prior convic
p
ctions).

25
26
27
28

Relief on Petitione double jeopardy cl
o
er’s
j
laim based on trial cou
unsel’s defic
cient
argu
ument is DE
ENIED.
2.
2

Crue and Unu
el
usual Punis
shment

Petition contends that his se
ner
entence of t
twenty-five years to lif imprisonm
fe
ment,
15

1

which was rendered pursuant to California’s Three Strikes law, constitutes cruel and

2

unusual punishment in violation of the Eighth Amendment because the sentence is “grossly

3

out of proportion to the severity of the crime.” Dkt. 1 at 6, 9. The Eighth Amendment

4

forbids “extreme sentences that are ‘grossly disproportionate’ to the crime.” Ewing v.

5

California, 538 U.S. 11, 23 (2003). A sentence will be found grossly disproportionate only

6

in “exceedingly rare” and “extreme” cases. Andrade, 538 U.S. at 73. In determining

7

whether a sentence is grossly disproportionate under a recidivist sentencing statute, such as

8

California’s Three Strikes law, the court looks to whether such an “extreme sentence is

9

justified by the gravity of [an individual’s] most recent offense and criminal history.”

10

Ramirez v. Castro, 365 F.3d 755, 768 (9th Cir. 2004). Successful challenges based on

11

proportionality are “exceedingly rare.” Taylor v. Lewis, 460 F.3d 1093, 1098 (9th Cir.

12

2006)

13

In Ramirez, the Ninth Circuit held that a sentence of twenty-five years to life upon

14

conviction of petty theft with prior convictions was grossly disproportionate to the current

15

crime where the previous two strikes did not involve violence and where both strikes were

16

the result of one negotiated plea resulting in a one-year county jail sentence. 365 F.3d at

17

767-70. The court noted that this was the “extremely rare case that gives rise to an

18

inference of gross disproportionality.” Id. at 770. In a subsequent case, however, the Ninth

19

Circuit held that a sentence of twenty-five years to life upon conviction of petty theft with

20

prior convictions was not grossly disproportionate. Rios v. Garcia, 390 F.3d 1082, 1086

21

(9th Cir. 2004). Distinguishing Ramirez, the Rios court focused on the fact that that the

22

defendant had struggled with a guard to prevent being apprehended, his prior convictions of

23

robbery “involved the threat of violence … because his cohort used a knife,” and because

24

the defendant had a lengthy criminal history. Id.

25

In the instant case, Petitioner was sentenced to two concurrent terms of thirty-five

26

years to life pursuant to California’s Three Strikes law, which is triggered when a defendant

27

(1) is convicted of a felony and (2) has suffered one or more prior “serious” or “violent”

28

felony convictions. See Cal. Penal Code § 667(e)(2)(A). Under California’s Three Strikes
16

1

law at the time of Petitioner’s sentencing, any felony conviction could constitute the third

2

strike and subject a defendant to a term of twenty-five years to life in prison. See Andrade,

3

538 U.S. at 67.

4

Petitioner’s criminal history includes two forcible rapes against two different

5

victims, during which he dragged the victims by their head or neck, slapped them

6

repeatedly, and threatened to kill them. CT 149. He was sentence to four years in prison

7

and was paroled in 1981. CT 149. Less than four months after being paroled, Petitioner

8

committed a third forcible rape and was sentenced to six years in prison. CT 149. Eight

9

months after his release in 1986, Petitioner committed a battery on a police officer. CT

10

149. He was paroled on that charge in 1988, and subsequently was convicted for injuring a

11

police officer. CT 149. Petitioner was release from prison in late 2003, and committed the

12

instant offenses in 2004. CT 150. These felonies, as well as Petitioner’s other crimes, were

13

set forth in the prosecutor’s sentencing memorandum and discussed at a Romero hearing.

14

CT 149-150; 8 RT 2105-2117.

15

To the extent Petitioner asserts a disproportionality claim with respect to his total

16

sentence of thirty-five years to life, it is controlled by Andrade. In that case, the Supreme

17

Court held that the petitioner’s Three Strikes sentence of fifty years to life (two consecutive

18

Three Strikes sentences) following conviction for two felony counts of petty theft with a

19

prior was not disproportionate to the offense or cruel and unusual punishment in violation

20

of the Eighth Amendment. See 538 U.S. at 76. Here, Petitioner has a lengthy, prior

21

criminal history based on violent rapes and assaults. He committed many of those offenses

22

within a short period of time following his release on parole. The offenses at issue likewise

23

occurred shortly after his most recent release from prison, and are consistent with his

24

pattern of violent conduct. Given those circumstances, Petitioner’s sentence, while perhaps

25

harsh, fails to raise “an inference of gross disproportionality.” See Graham v. Florida, 560

26

U.S. 48, 60 (2010). Consequently, consideration of comparative factors is unnecessary, see

27

id., and the Eighth Amendment claim fails.

28

The state supreme court’s summary rejection of Petitioner’s Eighth Amendment
17

1

claim was not contrary to, or an unreasonable application of, clearly established Supreme

2

Court precedent, nor was it based on an unreasonable determination of the facts. See 28

3

U.S.C. § 2254(d). Based on Petitioner’s history of criminal recidivism, which includes

4

multiple crimes of violence, his sentence cannot be said to be grossly disproportionate in

5

violation of the Eighth Amendment. See Rios, 390 F.3d at 1086; see also Andrade, 538

6

U.S. at 76 (upholding sentence of two consecutive terms of twenty-five years to life for

7

recidivist convicted of two counts of petty theft with a prior theft conviction and who had

8

four prior strike convictions for burglary); Cacoperdo v. Demosthenes, 37 F.3d 504, 508

9

(9th Cir. 1994) (sentence of ineligibility for parole for forty years not grossly

10

disproportionate when compared with gravity of sexual molestation offenses).

11

Relief on Petitioner’s cruel and unusual punishment claim is DENIED.

12

IV.

13

CERTIFICATE OF APPEALABILITY
No certificate of appealability is warranted in this case. For the reasons discussed

14

above, jurists of reason would not find this Court’s denial of Petitioner’s claims debatable

15

or wrong. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Petitioner may not appeal the

16

denial of a Certificate of Appealability in this Court but may seek a certificate from the

17

Ninth Circuit under Rule 22 of the Federal Rules of Appellate Procedure. See Rule 11(a)

18

of the Rules Governing Section 2254 Cases.

19

V.

CONCLUSION

20

For the reasons stated above,

21

IT IS HEREBY ORDERED THAT:

22

1.

All claims from the Petition are DENIED, and a certificate of appealability

23

will not issue. Petitioner may seek a certificate of appealability from the Ninth Circuit

24

Court of Appeals.

25

2.

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

IT IS SO ORDERED.
27 Dated: August 21, 2017
26

______________________________
SAUNDRA BROWN ARMSTRONG
Senior United States District Judge

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P:\PRO-SE\SBA\HC.13\Jackson5407.denyHC-rev3.docx

18