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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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 OAKLAND DIVISION 8 9 CLIFFORD L. JACKSON, JR., 10 Petitioner, 11 12 Case No: C 13-05407 SBA (PR) ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS vs. 13 NEIL MCDOWELL, Acting Warden, 14 Respondent. 15 16 Following a retrial in the Monterey County Superior Court in 2011, a jury convicted 17 Petitioner Clifford L. Jackson, Jr. (“Petitioner”) of two counts of attempted criminal threats. 18 The trial court found true three prior convictions for purposes of California’s Three Strikes 19 law and imposed a sentence of 35 years to life. Petitioner brings the instant pro se habeas 20 action under 28 U.S.C. § 2254 to challenge his conviction and sentence. The petition raises 21 the following three claims: (1) the prosecutor’s closing argument shifted the burden of 22 proof in violation of Petitioner’s constitutional right to due process; (2) Petitioner’s trial 23 counsel provided ineffective assistance by not objecting to the argument and by presenting 24 a deficient closing argument; and (3) the enhancement of Petitioner’s sentence with his 25 prior convictions under California’s Three Strikes law violates his rights under the Eighth 26 Amendment. Having read and considered the papers filed in connection with this matter 27 and being fully informed, the Court hereby DENIES the Petition for the reasons set forth 28 below. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 1 This summary is presumed correct. See Hernande v. Small, 282 F.3d 1 s c ez , 1132, 1135 n.1 (9th Cir. 20 002). 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 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 16 mak king crimin threats in violation of Californ Penal Co § 422. Id. The am nal n nia ode mended 17 info ormation fu urther allege that Petit ed tioner had s suffered thr prior stri convictions ree ike 18 (Ca alifornia Pen Code § 1170.12(c) nal )(1)) and tw prior seri wo ious felonie (id. § 667 es 7(a)(1)), 19 and that he had committed a felony while out on bail (id. § 12022.1). Jackson I, 178 Cal. d d w n 20 App 4th at 595. p. 21 After th first trial, the jury ac he , cquitted Pet titioner of m making crim minal threat against ts 22 Ros semary and William Rogers, but convicted h of the le d R c him esser includ offense of ded 23 atte empted crim minal threat (California Penal Cod §§ 422, 6 a de 664). Id. P Petitioner ad dmitted the 24 rem maining allegations. Id He was sentenced to twenty-fiv years to life in priso Id. d. s o ve on. 25 Peti itioner appe ealed the ju udgment to the Californ Court of Appeal. t nia 26 In 2009 the Califo 9, ornia Court of Appeal r reversed Pe etitioner’s ju udgment. T state The 27 app pellate court explained that the cri of attem t ime mpted crimi threat i inal includes a 28 o “rea asonablenes element,” and that th trial cou erroneou failed to instruct th jury to ss he urt usly he 3 1 consider whether the intended threat reasonably could have caused sustained fear under the 2 circumstances. Id. at 596-601. Specifically, the court held as follows: 3 [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. 4 5 6 7 8 Id. at 598. 9 On remand, the prosecution filed an amended information. CT 1-5. The amended 10 information charged two counts of attempted criminal threats, three prior strikes 11 (California Penal Code § 1170.12) and two prior serious felony convictions (id. § 667(a)).2 12 The amended information also included a misdemeanor resisting charge and on-bail 13 enhancement allegations that were later dismissed. CT 1-5. 14 At Petitioner’s retrial, Rosemary and William Rogers, as well as the arresting 15 officer, Officer Nicholas Borges, again testified. In addition, the redacted testimony of 16 Moore and her father (John Moore) from the previous trial was read into the record. CT 17 115-116. 18 On September 16, 2011, the jury convicted Petitioner as charged on each count of 19 attempted criminal threat. CT 120-121; 5-A RT 1287-1288. In a bifurcated trial, the court 20 found the prior conviction allegations true. CT 122; 4 RT 1507-1508; see also 8 RT 2114- 21 2116. 22 On December 16, 2011, the court sentenced Petitioner to two concurrent terms of 23 thirty-five years to life in prison. 1CT 164, 223; 8 RT 2119. The sentence was imposed 24 consecutively to a previously-imposed 2006 conviction and sentence of twenty-five years 25 to life in Monterey County Superior Court No. SS041968A. 8 RT 2120. 26 27 28 2 Petitioner had admitted these allegations at the first trial. See Jackson I, 178 Cal. App. 4th at 595. CT 1-5. 4 1 2. Post-Conviction Appeals and Collateral Attacks 2 Petitioner appealed the judgment to the California Court of Appeal, alleging a claim 3 for ineffective assistance of counsel (“IAC”). In particular, Petitioner asserted that, during 4 rebuttal argument, the prosecutor attempted to shift the burden of proof to the defense, and 5 that his trial counsel was ineffective for failing to object to the prosecutor’s remarks. 6 People v. Jackson, No. H036769, 2012 WL 4354933, *1 (Cal. Ct. App. Sept. 25, 2012) 7 (“Jackson II”). 8 9 10 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. 11 In 2013, Petitioner filed a state habeas petition restating under federal and state law 12 his IAC claim that had been rejected on direct review, and the California Supreme Court 13 summarily denied the petition. Resp’t Ex. 9. 14 On November 20, 2014, Petitioner filed the instant federal petition. On January 30, 15 2015, the Court denied Respondent’s motion to dismiss and ordered proceedings stayed 16 while Petitioner exhausted his newly-asserted sentencing claim (Claim Three). Dkt. 27. 17 Petitioner filed a state habeas petition in the California Supreme Court raising his 18 sentencing claim. Resp’t Ex. 10. On May 20, 2015, the California Supreme Court 19 summarily denied the petition. Id. 20 21 On August 6, 2015, this Court lifted the stay in the instant proceeding and issued an Order to Show Cause. Dkt. 32. 22 Respondent has filed an Answer, and Petitioner has filed a Traverse. Dkts. 34, 37. 23 The matter is now fully briefed. 24 II. 25 STANDARD OF REVIEW The instant Petition is governed by the Antiterrorism and Effective Death Penalty 26 Act of 1996 (“AEDPA”), 28 U.S.C. § 2254. Under AEDPA, a federal court cannot grant 27 habeas relief with respect to any claim adjudicated on the merits in a state-court proceeding 28 unless: (1) the proceeding “resulted in a decision that was contrary to, or involved an 5 1 unreasonable application of, clearly established Federal law, as determined by the Supreme 2 Court of the United States”; or (2) “resulted in a decision that was based on an 3 unreasonable determination of the facts in light of the evidence presented in the State court 4 proceeding.” 28 U.S.C. § 2254(d)(1), (2). 5 The first prong of § 2254 applies both to questions of law and to mixed questions of 6 law and fact. See Williams (Terry) v. Taylor, 529 U.S. 362, 407-409 (2000). A state court 7 decision is “contrary to” clearly established federal law “if the state court applies a rule that 8 contradicts the governing law set forth in [Supreme Court] cases or if the state court 9 confronts a set of facts that are materially indistinguishable from a decision of [the 10 Supreme] Court and nevertheless arrives at a result different from [its] precedent.” Lockyer 11 v. Andrade, 538 U.S. 63, 73 (2003) (internal quotation marks omitted). “When there is no 12 clearly established federal law on an issue, a state court cannot be said to have 13 unreasonably applied the law as to that issue.” Holley v. Yarborough, 568 F.3d 1091, 1098 14 (9th Cir. 2009) (citing Carey v. Musladin, 549 U.S. 70, 76-77 (2006)). 15 Relief under the “unreasonable application” clause is appropriate “if the state court 16 identifies the correct governing legal principle from [the Supreme] Court’s decisions but 17 unreasonably applies that principle to the facts of the prisoner’s case.” Id. The federal 18 court on habeas review may not issue the writ “simply because that court concludes in its 19 independent judgment that the relevant state-court decision applied clearly established 20 federal law erroneously or incorrectly.” Williams (Terry), 529 U.S. at 411. Rather, the 21 petitioner must show that the application of Supreme Court law was “objectively 22 unreasonable.” Id. at 409; Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam). 23 The second prong of § 2254 applies to decisions based on factual determinations. 24 See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Under 28 U.S.C. § 2254(d)(2), a state 25 court decision “based on a factual determination will not be overturned on factual grounds 26 unless objectively unreasonable in light of the evidence presented in the state-court 27 proceeding.” Miller-El, 537 U.S. at 340; see also Torres v. Prunty, 223 F.3d 1103, 1107 28 (9th Cir. 2000). 6 In deter rmining wh hether a state court’s de e ecision is co ontrary to, o involves an or 1 2 unr reasonable application of, clearly established federal law courts in this Circuit look to a d w, 3 the decision of the highes state cour to address the merits of the petitioner’s cla in a f st rt s s aim 4 reas soned decis sion. See Ylst v. Nunn Y nemaker, 50 U.S. 797 803-804 ( 01 7, (1991); LaJ v. Joie 5 Tho ompson, 217 F.3d 663, 669 n.7 (9 Cir. 200 9th 00). Moreov “a dete ver, ermination o a factual of 6 issu made by a State cou shall be presumed t be correc and the petitioner “ ue urt p to ct,” “shall have 7 the burden of rebutting th presumpt r he tion of corre ectness by c clear and co onvincing e evidence.” 8 28 U.S.C. § 22 U 254(e)(1). 9 On fede habeas review, AE eral EDPA “imp poses a high deferent standard for hly tial d 10 eva aluating stat te-court ruli ings” and “demands th state-cou decision be given the benefit hat urt ns 11 of the doubt.” Renico v. Lett, 559 U.S. 766, 77 (2010) (in t U 73 nternal quo otation mark omitted). ks 12 In applying the above stan a e ndards on habeas revie this Cou reviews the “last re h ew, urt s easoned 13 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 14 As expl lained below Petitione did not co w, er ontemporan neously obj to the p ject prosecutor’s s 15 alle eged burden n-shifting ar rgument in Claim One therefore, he has pro e; , ocedurally d defaulted on n 16 this claim from a federal habeas corp review. However, even thoug Petitione forfeited s m h pus , gh er 17 his due process claim, the state appellate court a e addressed th issue in the context of his he t 18 Six Amendm IAC cl xth ment laim premis on his tr counsel failure to object to the sed rial l’s o 19 prosecutor’s re ebuttal. See Jackson II 2012 WL 4354933, at *3-*4. M e I, L Meanwhile, the last , 20 reas soned decis sion as to Pe etitioner’s IAC claim ( I (Claim Two is the Ca o) alifornia Co of ourt 21 App peal’s unpu ublished dis sposition iss sued on Sep ptember 25, 2012. See id. Finally there is , e y, 22 no reasoned de r ecision on his sentenci claim (C h ing Claim Three which w summar denied e), was rily 23 by the Californ Suprem Court on May 20, 20 t nia me 015. Resp’t Ex. 10. t 24 III. . 25 26 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 27 prosecutor dur ring rebuttal argument. In Claim One, Petitio . oner conten that his due nds 28 process rights were violat because the prosec ted e cutor’s argu ument attem mpted to shif the ft 7 1 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: 4 5 6 7 8 9 10 11 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. 18 “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.” 12 13 14 15 19 20 21 22 23 24 25 26 27 28 “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 8 1 2 3 4 5 6 7 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.” 18 “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 28 P:\PRO-SE\SBA\HC.13\Jackson5407.denyHC-rev3.docx 18

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