Berryman v. Hedgpeth et al

Filing 21

ORDER: The Report and Recommendation (Doc. 18 ) is adopted in its entirety and the Petition for Writ of Habeas Corpus (Doc. 1 ) is denied. A certificate of appealability is denied. The Clerk of the Court shall close this case. Signed by Judge William Q. Hayes on 7/27/2011. (All non-registered users served via U.S. Mail Service.) (mdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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WARREN LAMAR BERRYMAN,

CASE NO. 09cv2015 WQH(WMC)

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ORDER

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Petitioner,
vs.
ANTHONY HEDGPETH, Warden, and
EDMUND G. BROWN JR., the Attorney
General of the State of California,

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Respondents.

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16 HAYES, Judge:
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The matter before the Court is the Report and Recommendation (“R&R”) (ECF No. 18)

18 of Magistrate Judge William McCurine Jr., filed on June 21, 2010, recommending that this
19 Court deny the Petition for Writ of Habeas Corpus filed by Petitioner Warren Lamar Berryman
20 (ECF No. 1).
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PROCEDURAL BACKGROUND
On September 14, 2009, Petitioner, proceeding pro se, initiated this action by filing his

23 Petition for Writ of Habeas Corpus. (ECF No. 1). On September 22, 2009, the Magistrate
24 Judge issued a Notice Regarding Possible Failure to Exhaust and One-Year Statute of
25 Limitations advising Petitioner of the consequences of failure to exhaust and of the applicable
26 statute of limitations. (ECF No. 3). On November 9, 2009, Respondent filed a Motion to
27 Dismiss. (ECF No. 6). On December 16, 2009, Petitioner filed an Opposition. (ECF No. 8).
28 On January 1, 2010, Petitioner filed a Motion to Stay. (ECF No. 9). On March 3, 2010, the
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1 Magistrate Judge issued a Report and Recommendation recommending that the Court grant
2 in part and deny in part Respondent’s Motion to Dismiss and that the Court deny Petitioner’s
3 Motion to Stay. (ECF No. 10). On May 20, 2010, this Court adopted the Report and
4 Recommendation in its entirety and dismissed Petitioner’s first, second, third, fourth, and
5 seventh claims. (ECF No. 11). Claim number five that “Petitioner was denied his 6th
6 Amendment right to the effective assistance of counsel at trial and on direct appeal” and claim
7 number six that “the trial court erred reversibly in failing to sua sponte instruct the jury that
8 the Robles brothers and Jessica Martinez were accomplices as a matter of law” were not
9 dismissed. See (ECF No. 1 at 45, 52).
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On August 26, 2010, Respondent filed an Answer to Petitioner’s remaining claims

11 (ECF No. 14). On September 22, 2010, Petitioner filed a Traverse. (ECF No. 16). On March
12 1, 2011, the Magistrate Judge issued a Report and Recommendation recommending that the
13 Court deny the Petition for Writ of Habeas Corpus. (ECF No. 18). On March 29, 2011,
14 Petitioner filed Objections to the Report and Recommendation. (ECF No. 20).
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STANDARD OF REVIEW
The duties of the district court in connection with a magistrate judge’s report and

17 recommendation are set forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C.
18 § 636(b)(1). The district court must “make a de novo determination of those portions of the
19 report ... to which objection is made,” and “may accept, reject, or modify, in whole or in part,
20 the findings or recommendations made by the magistrate.” 28 U.S.C. §636(b)(1); see also
21 United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989).
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DISCUSSION
Petitioner objects to the Report and Recommendation in its entirety. Accordingly, the

24 Court reviews the Petition and the Report and Recommendation de novo.
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The Magistrate Judge correctly found that this Court’s review of the Petition is

26 governed by the deferential standard of the Antiterrorism and Effective Death Penalty Act of
27 1996. Under this standard, a petition cannot be granted unless the state court decision was
28 “contrary to, or involved an unreasonable application of, clearly established Federal law, as
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1 determined by the Supreme Court of the United States; or resulted in a decision that was based
2 on an unreasonable determination of the facts in light of the evidence presented in the State
3 court proceeding.” 28 U.S.C. § 2254 (d); see also Williams v. Taylor, 529 U.S. 362, 404-05
4 (2000).
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The Magistrate Judge correctly conducted an independent review of the record to

6 determine whether the state court decision regarding Petitioner’s ineffective assistance of
7 counsel claims were objectively unreasonable.
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For ineffective assistance of counsel to provide a basis for habeas relief, Petitioner must

9 demonstrate two things. First, he must show that counsel’s performance was deficient.
10 Strickland v. Washington, 466 U.S. 668, 687 (1984). “This requires showing that counsel
11 made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
12 defendant by the Sixth Amendment.” Id. Second, he must show counsel’s deficient
13 performance prejudiced the defense. Id. This requires showing that counsel’s errors were so
14 serious they deprived Petitioner “of a fair trial, a trial whose result is reliable.” Id.
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The Magistrate Judge correctly found that “defense counsel argued extensively and

16 somewhat successfully against the motion in limine [to exclude comment regarding the length
17 of the Robles’ brothers’ sentences].” (ECF No. 10). The Magistrate Judge correctly found that
18 defense counsel “thoroughly cross-examined the Robles brothers about the terms and details
19 of their plea agreements.” Id. at 10-11. The Magistrate Judge correctly found that counsel’s
20 representation of Petition did not fall below an objective standard of reasonableness. The
21 Magistrate Judge also correctly found that Petitioner did not demonstrate prejudice “[e]ven if
22 one were to assume Petitioner’s attorney was able to preclude Officer Cuevas from discussing
23 the Robels brothers’ initial statement to her ....” Id. at 12. The Magistrate Judge correctly
24 concluded that the state court’s decision was not contrary to clearly established federal law and
25 was not an unreasonable application of federal law.
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Generally, a challenge to a state’s jury instructions does not concern constitutional

27 issues that can be addressed on habeas review. See Estelle v. McGuire, 502 U.S. 62, 71-72;
28 Laboa v. Calderon, 224 F.3d 972, 979 (9th Cir. 2000). However, a state’s jury instruction
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1 error constitutes a violation of due process where the error so infects the trial the resulting
2 conviction violates due process. Cupp v. Naughten, 414 U.S. 141 (1973); Middleton v. McNeil,
3 541 U.S. 433 (2004); Hayes v. Woodford, 301 F.3d 1054, 1086 n.38 (9th Cir. 2002). Petitioner
4 must show the error had a “substantial and injurious effect or influence in determining the
5 jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see also Hanna v. Riveland,
6 87 F.3d 1034, 1039 (9th Cir. 1996).
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The Magistrate Judge correctly found that Petitioner did not demonstrate that his trial

8 was fundamentally unfair due to alleged errors in state jury instructions. The Magistrate Judge
9 correctly found that “the state appellate court’s determination that any instructional error at
10 Petitioner’s trial was harmless and was not unreasonable.” Id. at 14. The Magistrate Judge
11 correctly concluded that the state court’s decision was not contrary to clearly established
12 federal law and was not an unreasonable application of federal law.
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The Court has reviewed de novo all aspects of the R&R, lodgments, and filings in this

14 case and concludes that the Magistrate Judge correctly recommended that the Petition be
15 denied.
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CERTIFICATE OF APPEALABILITY
A certificate of appealability must be obtained by a petitioner in order to pursue an

18 appeal from a final order in a Section 2254 habeas corpus proceeding. See 28 U.S.C. §
19 2253(c)(1)(A); Fed. R. App. P. 22(b). Pursuant to Rule 11 of the Federal Rules Governing
20 Section 2254 Cases, “[t]he district court must issue or deny a certificate of appealability when
21 it enters a final order adverse to the applicant.”
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A certificate of appealability should be issued only where the petition presents a

23 substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). A
24 certificate should issue where the prisoner shows that jurists of reason would find it debatable
25 whether the petition states a valid claim of the denial of a constitutional right, and whether the
26 district court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 484
27 (2000). For the reasons stated in the Report and Recommendation and in this Order, the Court
28 concludes that jurists of reason would not find it debatable whether this Court was correct in
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1 denying the Petition. The Court denies a certificate of appealability.
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CONCLUSION
IT IS HEREBY ORDERED that the Report and Recommendation (ECF No. 18) is

4 ADOPTED in its entirety and the Petition for Writ of Habeas Corpus (ECF No.1) is DENIED.
5 A certificate of appealability is DENIED. The Clerk of the Court shall close this case.
6 DATED: July 27, 2011
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WILLIAM Q. HAYES
United States District Judge

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