Ali v. Grounds et al
Filing
17
ORDER ADOPTING REPORT AND RECOMMENDATION. Court overrules Petitioner Ahmed Ali's 15 Objection to Report and Recommendation, adopts 12 Report and Recommendation, and denies 1 Petition for Writ of Habeas Corpus. The Clerk shall enter judgment in favor of Respondents and close the file. Signed by Judge Cynthia Bashant on 2/22/2017. (jah)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
SOUTHERN DISTRICT OF CALIFORNIA
10
11
AHMED ALI,
Case No. 14-cv-00898-BAS-WVG
Petitioner,
12
(1) OVERRULING
PETITIONER’S OBJECTIONS;
13
14
15
16
ORDER:
v.
(2) ADOPTING REPORT AND
RECOMMENDATION; AND
R.T.C. GROUNDS, Warden, et al.,
Respondents.
(3) DENYING FIRST AMENDED
HABEAS PETITION
17
18
19
20
Petitioner Ahmed Ali brings this First Amended Petition for Writ of Habeas
21
Corpus under 28 U.S.C. § 2254, challenging his July 2010 conviction in San Diego
22
County Superior Court. The matter was referred to Magistrate Judge William V.
23
Gallo, who issued a Report and Recommendation recommending that Ali’s petition
24
be denied. Ali filed written objections. For the reasons set forth below, the Court
25
adopts the Report and Recommendation, and denies Ali’s habeas petition.
26
27
BACKGROUND
The California Court of Appeal found the facts underlying Ali’s conviction to
28
–1–
14cv898
1
be as follows:1
2
On the night of July 22, 2008, shootings occurred at two different
locations in San Diego.
3
The first shooting occurred around 9:30 p.m. when two men walked up
to and shot at a car that was driving out of the Harbor View apartment
complex. The apartment complex was known as a location where
members of the Neighborhood Crip gang congregated. One witness
described the apartment complex as a “war zone” between the
Neighborhood Crip gang and the nearby Lincoln Park gang. Three men
were riding in the targeted car, at least two of whom were affiliated with
the Neighborhood Crip gang. Before shooting at the car, one of the
shooters said, “What’s up, cuz,” with “cuz” being a term that refers to
Crip gang members. Bullets struck the car, but no one in the car was shot
or seriously injured. A bullet also entered a nearby residence.
4
5
6
7
8
9
10
The second shooting, which occurred at an apartment complex on
College Avenue, was reported to police shortly before 11:00 p.m. Two
men approached a group of people congregating by the stairs at the
apartment complex and opened fire. Larry Lumpkin was fatally shot in
the head. Maurice McElwee sustained a minor gunshot wound to his
chest. Although the College Avenue apartment complex was not in any
particular gang’s territory, it was a common place for members of the
O’Farrell Park or Skyline Piru gangs.
11
12
13
14
15
16
On August 7, 2008, the police received information about both shootings
when a member of the Lincoln Park gang, Jesse Freeman, spoke to police
after being arrested on an unrelated offense. Freeman told police that a
fellow Lincoln Park gang member, Ali, claimed to have committed both
of the July 22, 2008 shootings along with someone named “L” or “Lex.”
Freeman also gave police information about other crimes, including bank
robberies, committed by different Lincoln Park gang members. Freeman
made similar disclosures to police in subsequent interviews.
17
18
19
20
21
After the disclosure from Freeman, police examined the ballistics
evidence from the two July 22, 2008 shootings and discovered that the
same firearm was used in both incidents. Police next searched Ali’s
apartment and found a shell casing that was shown through forensic
analysis to have been discharged from a gun that was fired at both of the
July 22, 2008 shooting scenes.
22
23
24
25
Police arrested Ali in connection with the July 22, 2008 shootings.
26
27
28
On federal habeas review, the state court’s factual findings are presumed correct unless rebutted
by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Slovik v. Yates, 556 F.3d 747,
749 n.1 (9th Cir. 2009) (as amended). Petitioner has not challenged these findings here.
1
–2–
14cv898
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
Freeman testified at a preliminary hearing held on November 14, 2008,
describing Ali’s admission to committing the shootings. According to
Freeman’s testimony, Ali told him that he carried out the shootings to
“put in some work” for the Lincoln Park gang and get at members of
rival gangs. Because Freeman was in danger from having testified
against a fellow gang member, the police relocated Freeman to Arizona
after the preliminary hearing. Freeman was found dead under a freeway
overpass in Arizona on November 22, 2008, having suffered blunt force
head trauma. Local police investigation into Freeman’s death was
inconclusive as to whether the death was a homicide, a suicide or an
accident.
Ali was tried for one count of murder based on Lumpkin’s death (Cal.
Penal Code § 187, subd. (a)); four counts of attempted murder based on
the chest wound to McElwee and the shots fired at the three victims in
the car at the Harbor View apartments (§§ 187, subd. (a), 664); two
counts of shooting at an inhabited structure or vehicle (§ 246); one count
of being a convicted felon in possession of a firearm (former § 12021,
subd. (a)(1)); and one count of unlawfully possessing a firearm (former
§ 12316, subd. (b)(1)). The information also alleged firearm and criminal
street gang enhancements (§§ 12022.53, subds. (c), (d), (e)(1), 186.22,
subd. (b)(1)).
Because Freeman was no longer alive at the time of trial, his preliminary
hearing testimony was read into the record at trial. The jury also heard
recordings of Freeman’s interview with police.
Among the other evidence against Ali at trial was the testimony of two
eye witnesses. First, one of the men who came under fire at the College
Avenue apartments on July 22, 2008, testified that he picked out Ali from
a photographic lineup in February 2009 as one of the shooters, stating
that he was 60 to 70 percent certain at the time of the identification.
Second, a teenage boy, James Gomez, who saw the shooters at the
College Avenue apartments before they opened fire, identified Ali as one
of the shooters.
Ali presented testimony from friends and family members, who said they
were with Ali at his apartment at the time of the shootings. Defense
counsel argued that instead of Ali committing the shootings, Freeman or
some other Lincoln Park gang member could have committed them and
could have framed Ali, or the shootings could have been committed by
someone associated with a different gang.
27
The jury convicted Ali on all counts, and the trial court sentenced him to
prison for an indeterminate prison term of 135 years to life, plus a
determinate term of 60 years.
28
People v. Ali, D058357, 2013 WL 452901, at *1–3 (Cal. Ct. App. Feb. 7, 2013)
26
–3–
14cv898
1
(unpublished).
2
Ali filed a direct appeal of his conviction in the California Court of Appeal,
3
which affirmed his conviction in an unpublished opinion dated February 7, 2013. Id.
4
Ali then filed a petition for review in the California Supreme Court. (ECF No. 5,
5
Attach. 45.) That Court summarily denied the petition on April 17, 2013. (ECF No.
6
5, Attach. 46.)
7
On June 9, 2014, Ali filed a First Amended Petition for Writ of Habeas Corpus
8
(“Petition”) in this Court seeking habeas relief on twelve grounds.2 (ECF No. 6.)
9
Respondents answered, and Ali filed a traverse. (ECF Nos. 10, 11.)
10
On March 16, 2015, Magistrate Judge William V. Gallo issued a Report and
11
Recommendation, pursuant to 28 U.S.C. § 636, recommending that this Court deny
12
Ali’s Petition. (ECF No. 12 (“Report” or “R & R”)) Among other things, the
13
magistrate judge concluded that the California Court of Appeal’s adjudication of
14
Ali’s claims was neither contrary to, nor an unreasonable application of, clearly
15
established federal law.
16
Ali filed written objections to the Report on April 29, 2015, arguing that it
17
erroneously resolves four of the twelve claims for relief raised in the Petition. (ECF
18
No. 15 (“Pet’r’s Objs.”)) Ali’s four remaining claims are based on: (1) the trial court’s
19
exclusion of certain hearsay statements; (2) the trial court’s failure to instruct on
20
third-party culpability; (3) the trial court’s exclusion of a juror affidavit to impeach
21
the verdict; and (4) cumulative error.
22
23
STANDARD OF REVIEW
A.
Review of Magistrate Judge’s Report and Recommendation
24
A district court’s review of a magistrate judge’s report and recommendation is
25
governed by 28 U.S.C. § 636. Under this statute, a district court must review de novo
26
“those portions of the report or specified proposed findings or recommendations to
27
28
Ali’s First Amended Petition superseded his original Petition for Writ of Habeas Corpus filed on
April 15, 2014.
2
–4–
14cv898
1
which objection is made.” 28 U.S.C. § 636(b)(1)(C). Only objections that reference
2
specific portions of the report and recommendation will trigger de novo review—
3
general or conclusory objections do not suffice. See, e.g., Goney v. Clark, 749 F.2d
4
5, 7 (3d Cir. 1984) (finding that de novo review of magistrate’s report was not
5
required where appellant’s objections were “general in nature” and “[t]here was no
6
objection to a specific portion of the report”). Where a petitioner does not object to a
7
report and recommendation, or to portions thereof, the district court is not required
8
to conduct “any review at all,” de novo or otherwise. Thomas v. Arn, 474 U.S. 140,
9
149 (1985); see also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.
10
2003) (“The statute makes it clear that the district judge must review the magistrate
11
judge’s findings and recommendations de novo if objection is made, but not
12
otherwise.”). Upon review, the district judge “may accept, reject, or modify, in whole
13
or in part, the findings and recommendations made by the magistrate.” 28 U.S.C. §
14
636 (b)(1)(C).
15
B.
Federal Habeas Review
16
The power of a federal court to grant habeas relief on behalf of state prisoners
17
is governed by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective
18
Death Penalty Act of 1996 (“AEDPA”). Under AEDPA, a federal court may not grant
19
habeas relief on any claim “adjudicated on the merits” in state court, unless the
20
resulting decision “was contrary to, or involved an unreasonable application of,
21
clearly established Federal law,” or “was based on an unreasonable determination of
22
the facts” in light of the record before the state court. 28 U.S.C. §§ 2254(d)(1), (d)(2).
23
The Supreme Court has made clear that AEDPA imposes a “highly deferential”
24
standard of review that “demands that state-court decisions be given the benefit of
25
the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (internal
26
citation omitted).
27
The phrase “clearly established Federal law” means “the governing legal
28
principle or principles set forth by the Supreme Court at the time the state court
–5–
14cv898
1
renders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71–72 (2003). These
2
principles are drawn from “the holdings, as opposed to the dicta,” of the Supreme
3
Court’s decisions. Williams v. Taylor, 529 U.S. 362, 412 (2000). A state court’s
4
decision is “contrary to” clearly established federal law if it applies a rule that
5
contradicts governing Supreme Court law, or if it confronts a set of facts that is
6
“materially indistinguishable” from a decision of the Supreme Court, but reaches a
7
different result. Brown v. Payton, 544 U.S. 133, 141 (2005) (citing Williams, 529
8
U.S. at 405–06). A state court decision involves an “unreasonable application” of
9
clearly established federal law if the state court correctly identifies the governing law,
10
but applies that law in an “objectively unreasonable” manner. Lockyer, 538 U.S. at
11
76 (citing Williams, 529 U.S. at 409, 413).
12
AEDPA deference applies only to claims that were “adjudicated on the merits”
13
in state court. An adjudication on the merits is one “based on the substance of the
14
claim advanced, rather than on a procedural, or other, ground.” Lambert v. Blodgett,
15
393 F.3d 943, 969 (9th Cir. 2004) (quoting Sellan v. Kuhlman, 261 F.3d 303, 311 (2d
16
Cir. 2001)). However, a state court need not explicitly analyze a federal claim for
17
AEDPA deference to apply. The Supreme Court has held that “[w]hen a state court
18
rejects a federal claim without expressly addressing that claim, a federal habeas court
19
must presume that the federal claim was adjudicated on the merits[.]” Johnson v.
20
Williams, 568 U.S. —, 133 S. Ct. 1088, 1096 (2013). The presumption is a strong
21
one that may be rebutted only in unusual circumstances. Id. at 1096.
22
The relevant decision for purposes of federal habeas review is the last reasoned
23
state court decision. Ylst v. Nunnemaker, 501 U.S. 797, 804–06 (1991); see also
24
Medley v. Runnels, 506 F.3d 857, 862 (9th Cir. 2007) (en banc). “Where there has
25
been one reasoned state judgment rejecting a federal claim, later unexplained orders
26
upholding that judgment or rejecting the same claim rest upon the same ground.” Ylst,
27
501 U.S. at 803. In cases of summary denial by a state’s highest court, a federal
28
habeas court “looks through” to the last reasoned state court decision to address the
–6–
14cv898
1
claim at issue. Id. at 804–06. Here, the California Supreme Court summarily denied
2
Ali’s petition for review, and so the Court “looks through” to the California Court of
3
Appeal’s unpublished written decision as the appropriate decision for review. See
4
Medley, 506 F.3d at 862.
5
DISCUSSION
6
Ali’s First Amended Petition contained twelve grounds for habeas relief.
7
Following Magistrate Judge Gallo’s Report and Recommendation, and Ali’s
8
objections to that Report, only four claims remain in dispute. In his remaining claims,
9
Ali asserts violations of his federal constitutional rights based on: (1) the trial court’s
10
exclusion of critical and reliable hearsay; (2) the trial court’s failure to instruct the
11
jury on third-party culpability; (3) the trial court’s exclusion of a juror affidavit to
12
impeach the verdict; and (4) cumulative error. The Court reviews the magistrate
13
judge’s resolution of these claims de novo. 28 U.S.C. § 636(b)(1)(C).
14
A.
Right to Present a Defense
15
Ali contends that the trial court’s exclusion of hearsay statements by Marcus
16
House and Hunter Porter violated his federal right to present a defense under
17
Chambers v. Mississippi, 410 U.S. 284 (1973). (Pet’r’s Objs. 2–10.) Ali also presents
18
a threshold argument that the California Court of Appeal did not adjudicate his
19
Chambers claim on the merits, and therefore AEDPA deference does not apply to
20
this claim. The magistrate judge found that the California Court of Appeal did
21
adjudicate Ali’s Chambers claim on the merits, and that its resolution of the claim
22
was neither contrary to, nor an unreasonable application of, clearly established
23
federal law. (R & R 11–13, 20.)
24
1.
25
The Court first addresses Ali’s objection that the California Court of Appeal
26
did not address his right to present a defense claim on the merits. On direct appeal,
27
Ali claimed that the trial court’s exclusion of House and Porter’s hearsay statements
28
violated both California Evidence Code § 1230 and Ali’s right to present a defense
Adjudication on the Merits
–7–
14cv898
1
under Chambers. The court of appeal expressly addressed the state law claim, but
2
was silent on the Chambers claim. See Ali, 2013 WL 452901, at *10–12.
3
A state court need not expressly address a federal claim for AEDPA deference
4
to apply. “When a state court rejects a federal claim without expressly addressing that
5
claim, a federal habeas court must presume that the federal claim was adjudicated on
6
the merits.” Williams, 133 S. Ct. at 1096.3 The presumption “is a strong one that may
7
be rebutted only in unusual circumstances,” for example when the relevant state
8
standard is “less protective” than, or “quite different” from, the federal standard. Id.
9
Ali argues that the Williams presumption has been rebutted here because the
10
state court expressly treated his federal right to present a defense claim as a state law
11
claim. (Pet’r’s Objs. 2:1–4:6.) The magistrate judge concluded the presumption had
12
not been rebutted, in part because he found that the relevant state law standard
13
subsumed the federal standard. (R & R 12:4–9.) The Court agrees with the magistrate
14
judge.
15
A comparison of the relevant standards shows why the Williams presumption
16
holds in this case. The state law claim at issue was brought under Cal. Evid. Code §
17
1230, which, as pertinent here, provides for the admission of hearsay statements that
18
qualify as declarations against penal interest. For admission under § 1230, a statement
19
must be “distinctly against” the declarant’s interest and must be “clothed with indicia
20
of reliability.” People v. Duarte, 12 P.3d 1110, 1117 (Cal. 2000). The standard under
21
Chambers is similar: hearsay statements that are critical to the defense may not be
22
excluded as hearsay when the statements were made “under circumstances that
23
provided considerable assurance of their reliability.” Chambers, 410 U.S. at 300–01.
24
California courts have treated the Chambers standard and the § 1230 standard—
25
particularly their shared emphasis on “reliability”—as generally coextensive. See
26
People v. Butler, 209 P.3d 596, 610 (Cal. 2009) (“The same lack of reliability that
27
28
References to Williams in this section are to Johnson v. Williams, 568 U.S. —, 133 S. Ct. 1088
(2013), rather than Williams v. Taylor, 529 U.S. 362 (2000), another important AEDPA case.
3
–8–
14cv898
1
makes . . . statements excludable under [California] state law makes them excludable
2
under the federal Constitution.”) (citations omitted); People v. Dixon, 63 Cal. Rptr.
3
3d 637, 650 (Ct. App. 2007) (holding there is no constitutional error where the trial
4
court properly excludes evidence as unreliable under section 1230). Put another way,
5
the state law rule under § 1230 “is at least as protective” as the relevant federal
6
standard, and therefore “the federal claim may be regarded as having been
7
adjudicated on the merits.” Williams, 133 S. Ct. at 1096 (citing Early v. Packer, 537
8
U.S. 3, 8 (2002) (per curiam)).
9
Ali does not argue otherwise, but emphasizes that the state court addressed
10
only his state-law claim while not acknowledging his separate federal claim. But this
11
assertion only begs, rather than answers, the question whether the presumption has
12
been rebutted. Where, as here, “a state court rejects a federal claim without expressly
13
addressing that claim,” this Court “must presume that the federal claim was
14
adjudicated on the merits[.]” Id. at 1096 (emphasis added). Ali’s observation that the
15
state court was silent is little more than an acknowledgment of the conditions that
16
trigger the presumption, rather than evidence sufficient to rebut it.
17
Here, the Court finds that the state standard provided in Cal. Evid. Code § 1230
18
is at least as protective as the federal standard provided in Chambers. Therefore, the
19
California Court of Appeal’s adjudication of Ali’s claim under § 1230 effectively
20
addressed Ali’s counterpart federal claim under Chambers. Accordingly, the Court
21
applies AEDPA deference to Ali’s Chambers claim.
22
2.
23
“Whether rooted directly in the Due Process Clause of the Fourteenth
24
Amendment, or in the Compulsory Process or Confrontation clauses of the Sixth
25
Amendment, the Constitution guarantees criminal defendants ‘a meaningful
26
opportunity to present a complete defense.’” Crane v. Kentucky, 476 U.S. 683, 690
27
(1986) (internal citations omitted) (quoting California v. Trombetta, 467 U.S. 479,
28
485 (1984)). In Chambers, the Supreme Court established that the right to present a
Legal Standard for Chambers Claim
–9–
14cv898
1
defense may be abridged when a court excludes hearsay evidence that is reliable and
2
critical to the defendant’s case. Chambers, 410 U.S. at 302. In so holding, the Court
3
explained that although criminal defendants must comply with established rules of
4
evidence designed to facilitate the criminal trial process, these rules “may not be
5
applied mechanistically to defeat the ends of justice.” Id. On a Chambers claim, then,
6
the last word belongs not to state law, but to the Federal Constitution. Kubsch v. Neal,
7
838 F.3d 845, 853–54 (7th Cir. 2016); see also Lunberry v. Hornbeak, 605 F.3d 754,
8
762 (9th Cir. 2010) (“[D]epending on the facts and circumstances of the case, at times
9
a state’s rules of evidence . . . must yield in favor of due process and the right to a
10
fair trial.”) (citing Chambers, 410 U.S. at 302).
11
In determining whether application of a state evidentiary rule violates federal
12
due process under Chambers, the Ninth Circuit employs a balancing test, weighing
13
the reliability and importance of the evidence against the State’s interest in exclusion.
14
See Chia v. Cambra, 360 F.3d 997, 1004 (9th Cir. 2004) (citing Miller v. Stagner,
15
757 F.2d 988, 994 (9th Cir. 1985)). In evaluating reliability and importance, courts
16
consider five overlapping factors: (1) the probative value of the excluded evidence
17
on the central issue; (2) its reliability; (3) whether it is capable of evaluation by the
18
trier of fact; (4) whether it is the sole evidence on the issue or merely cumulative; and
19
(5) whether it constitutes a major part of the attempted defense. Id. These factors are
20
then weighed against “the substantial state interest in preserving orderly trials, in
21
judicial efficiency, and in excluding unreliable . . . evidence.” Miller, 757 F.2d at 995
22
(quoting Perry v. Rushen, 713 F.2d 1447, 1453 (9th Cir. 1983)); see also United
23
States v. Scheffer, 523 U.S. 303, 308 (1998) (“[S]tate and federal rulemakers have
24
broad latitude under the Constitution to establish rules excluding evidence from
25
criminal trials.”). In general, there must be “unusually compelling circumstances . . .
26
to outweigh the strong state interest in administration of its trials.” Moses v. Payne,
27
555 F.3d 742, 757 (9th Cir. 2008) (quoting Perry, 713 F.2d at 1452); see also Nevada
28
v. Jackson, 569 U.S. —, 133 S. Ct. 1990, 1992 (2013) (per curiam) (“Only rarely
– 10 –
14cv898
1
have we held that the right to present a complete defense was violated by the
2
exclusion of defense evidence under a state rule of evidence.”) (citations omitted).
House’s Statements
3
3.
4
The Court’s analysis begins with statements made by Marcus House to a
5
defense investigator. House, a Lincoln Park gang member, told a defense investigator
6
that: (1) Freeman, a fellow Lincoln Park gang member, told House that he had
7
committed the College Avenue shooting with another person known as “L”; (2)
8
Freeman explained to House how the shooting occurred; and (3) House had
9
previously given Freeman a nine millimeter handgun, the same caliber weapon used
10
in the shooting. (ECF No. 5, Attach. 5 at 77, 173.)
11
House refused to testify, and the trial court excluded his statements to the
12
defense investigator as hearsay. See Ali, 2013 WL 452901, at *10. The California
13
Court of Appeal determined that the trial court’s exclusion of these statements was
14
not an abuse of discretion, and the magistrate judge concluded that this determination
15
was neither contrary to, nor an unreasonable application of, clearly established
16
federal law. Ali objects, arguing that House’s statements were reliable and critical
17
under Chambers, and that exclusion of the statements violated Ali’s right to present
18
a defense. (Pet’r’s Objs. 5:3–8:9.)
19
As an initial matter, the Court notes that at least some of the Miller factors used
20
to evaluate a Chambers claim tend to weigh in favor of admission: House’s
21
statements were probative (to some degree) of the central issue of whether Ali
22
committed the College Avenue shooting; the statements were the sole direct evidence
23
implicating Freeman in the shootings; and the statements would have been a major
24
part of Ali’s defense. However, as explained below, House’s statements were neither
25
against his interest nor sufficiently reliable to require admission under Chambers.4
26
27
28
Given the Court’s determination that House’s statements were not sufficiently reliable for
admission under Chambers, the Court need not resolve definitively whether the statements were
capable of evaluation by the jury. It will suffice to say that given House’s refusal to testify, it is
4
– 11 –
14cv898
1
a.
2
California Evidence Code § 1230 permits the admission of hearsay statements
3
that qualify as declarations against the speaker’s penal interest. Under § 1230, a
4
hearsay statement will not be made inadmissible by the hearsay rule “if the declarant
5
is unavailable as a witness and the statement, when made, . . . so far subjected [the
6
declarant] to the risk of . . . criminal liability . . . that a reasonable man in his position
7
would not have made the statement unless he believed it to be true.” Cal. Evid. Code
8
§ 1230. To satisfy § 1230, a declaration must be “distinctly against” the declarant’s
9
penal interest and must be “clothed with indicia of reliability.” Duarte, 12 P.3d at
10
1117; People v. Shipe, 122 Cal. Rptr. 701, 708 (Ct. App. 1975); see also Chambers,
11
410 U.S. at 300–01 (declarations against interest that are critical to the defendant
12
must be admitted when the declarations are “in a very real sense self-incriminatory
13
and unquestionably against interest” and are made “under circumstances that
14
provided considerable assurance of their reliability”). In evaluating whether a
15
statement qualifies as a declaration against interest, courts should “take into account
16
not just the words but the circumstances under which they were uttered, the possible
17
motivation of the declarant, and the declarant’s relationship to the defendant.” People
18
v. Frierson, 808 P.2d 1197, 1205 (Cal. 1991) (en banc). “Whether a statement is self-
19
inculpatory or not can only be determined by viewing the statement in context.”
20
People v. Lawley, 38 P.3d 461, 497 (Cal. 2002) (citing Williamson v. United States,
21
512 U.S. 594, 603 (1994)).
22
Declarations against Interest
Ali argues that House’s statements were reliable under Chambers because they
23
24
25
26
27
28
doubtful the jury could have properly evaluated his statements. Ali argues that the defense
investigator could have testified about House’s statements, and that the State’s cross-examination
of the investigator could have provided the jury a means of evaluating House’s credibility and
demeanor. The Court finds this argument dubious for the simple reason that it would have the
defense investigator make credibility determinations—a function that falls within the exclusive
province of the jury. See Donoghue v. Orange County, 848 F.2d 926, 933 (9th Cir. 1987)
(“Credibility determinations are within the exclusive province of the jury.”) (citations omitted). It
is House’s credibility and demeanor that matter for purposes of jury evaluation, not the
investigator’s opinion about House’s credibility and demeanor.
– 12 –
14cv898
1
were declarations against House’s penal interest. (Pet’r’s Objs. 5:24–6:22.) In support
2
of this argument, Ali contends that House’s statements either implicated him in the
3
College Avenue shooting specifically, or in gang activity more generally. The Court
4
disagrees.
5
Ali’s main argument is that House’s statement that he gave Freeman a nine
6
millimeter handgun prior to Freeman committing the College Avenue shooting
7
exposed House to criminal liability. But this statement is not “distinctly against”
8
House’s penal interest. There was no evidence that the handgun House claims to have
9
given Freeman was the same gun used in the shooting. More importantly, House did
10
not say he gave Freeman the gun with knowledge that it would be used to carry out
11
the shooting, which might have subjected House to aider and abettor liability. See,
12
e.g., People v. Prettyman, 926 P.2d 1013, 1018 (Cal. 1996) (“To prove that a
13
defendant is an accomplice . . . the prosecution must show that the defendant acted
14
‘with knowledge of the criminal purpose of the perpetrator and with an intent or
15
purpose either of committing, or of encouraging or facilitating commission of, the
16
offense.’”) (quoting People v. Beeman, 674 P.2d 1318, 1325 (Cal. 1984) (citations
17
omitted)). Rather, House’s statement primarily bolsters his claims about Freeman’s
18
alleged involvement in the shooting. The fact that House never directly inculpates
19
himself in a crime, while at the same time asserting Freeman’s involvement,
20
substantially undermines the extent to which the statement can be viewed as against
21
House’s interest. See, e.g., Duarte, 12 P.3d at 1116 (“[W]e have declared section
22
1230’s exception to the hearsay rule ‘inapplicable to evidence of any statement or
23
portion of a statement not itself specifically disserving to the interests of the
24
declarant.’”) (quoting People v. Leach, 541 P.2d 296, 311 (Cal. 1975)). In addition,
25
House was already serving a 20-year prison sentence at the time he made the
26
statements and had been charged with several bank robberies. See Ali, 2013 WL
27
452901, at *8. He had little to lose by telling the defense investigator he gave
28
Freeman the same type of gun used in the shooting. Thus, under these circumstances,
– 13 –
14cv898
1
the Court finds that House’s statements did not run distinctly against his penal
2
interest. See Duarte, 12 P.3d at 1115 (“[T]hat a hearsay statement may be facially
3
inculpatory or neutral cannot always be relied upon to indicate whether it is ‘truly
4
self-inculpatory, rather than merely [an] attempt[] to shift blame or curry favor.’”)
5
(quoting Williamson, 512 U.S. at 603); People v. Traylor, 100 Cal. Rptr. 116, 120
6
(Ct. App. 1972) (“The test here is not whether the statement could provide a link in
7
a chain of evidence leading to the declarant’s liability, but whether the statement . . .
8
was ‘distinctly’ against his own penal interest.”).
9
Ali contends that even if House’s statement about giving Freeman the handgun
10
was not a declaration against interest, House’s other statements qualified as such
11
because they implicated him in gang activity that could have been used to prove the
12
gang allegations in his bank robbery case. (Pet’r’s Objs. 6:5–22.) This argument is
13
unpersuasive. To prove a gang allegation under California Penal Code §
14
186.22(b)(1), the prosecution must show that a defendant committed a felony “for
15
the benefit of, at the direction of, or in association with any criminal street gang,” and
16
“with the specific intent to promote, further, or assist in any criminal conduct by gang
17
members.” Cal. Penal Code § 186.22(b)(1); see also People v. Gardeley, 927 P.2d
18
713, 720 (Cal. 1996), disapproved of on other grounds by People v. Sanchez, 374
19
P.3d 320 (Cal. 2016). House’s statements to the defense investigator—i.e., that House
20
is a member of Lincoln Park; that he and Freeman communicated; that he gave
21
Freeman the same type of handgun used in the College Avenue shooting—do not
22
show that House committed bank robberies “for the benefit of, at the direction of, or
23
in association with” a gang and with the “specific intent” to facilitate criminal
24
conduct by gang members. Cal. Penal Code § 186.22(b)(1); People v. Albillar, 244
25
P.3d 1062, 1076 (Cal. 2010) (“The enhancement set forth in section 186.22(b)(1)
26
does not risk conviction for mere nominal or passive involvement with a gang. . . .
27
Rather, it applies when a defendant has personally committed a gang-related felony
28
with the specific intent to aid members of that gang.”). At most, House’s statements
– 14 –
14cv898
1
confirm his membership in Lincoln Park. This is insufficient to support a gang
2
enhancement under § 186.22(b)(1). See People v. Ochoa, 102 Cal. Rptr. 3d 108, 114
3
(Ct. App. 2009) (“The record must provide some evidentiary support, other than
4
merely the defendant’s record of prior offenses and past gang activities or personal
5
affiliations, for a finding that the crime was committed for the benefit of, at the
6
direction of, or in association with a criminal street gang.”) (citation omitted); People
7
v. Ortiz, 67 Cal. Rptr. 2d 126, 128 (Ct. App. 1997) (“For a gang enhancement to be
8
found true, there must be substantial evidence supporting [the] finding[.]”).
9
Therefore, the Court finds that the gang allegations in House’s bank robbery case did
10
not render his statements to the defense investigator declarations against interest.
11
Ali stresses that House’s decision to invoke his Fifth Amendment right and
12
refuse to testify is clear evidence that his statements were against his penal interest.
13
(Pet’r’s Objs. 6.) The Court disagrees. Even if House’s attorney believed that House
14
taking the stand could lead to a line of questioning that might incriminate him, this
15
does not mean that House considered the statements to have been against his interest
16
at the time he made them. See Cal. Evid. Code § 1230. To some extent, the
17
circumstances suggest the opposite: the fact that House originally told defense
18
counsel he would testify (before being advised otherwise by counsel) suggests he
19
perceived little risk in doing so. Thus, while House’s refusal to testify may speak to
20
his litigation strategy in his bank robbery case, or a newfound appreciation for the
21
perils of cross-examination, it by no means compels the conclusion that the
22
statements were against House’s interest at the time he made them. See, e.g., Traylor,
23
100 Cal. Rptr. at 120 (“The test here is not whether the statement could provide a link
24
in a chain of evidence leading to the declarant’s liability, but whether the statement .
25
. . was ‘distinctly’ against his own penal interest.”).
26
27
28
In sum, the Court finds that House’s statements to the defense investigator do
not qualify as declarations against House’s penal interest.
b.
Indicia of Reliability
– 15 –
14cv898
1
The Court has found that House’s statements did not constitute declarations
2
against interest. However, even assuming arguendo that House’s statements were
3
against his interest, the statements still lack sufficient indicia of reliability such that
4
Chambers requires admission. There are several reasons for this.
5
First, House had a strong motive to incriminate Freeman, a Lincoln Park gang
6
member who had become a police informant, and exonerate Ali, a Lincoln Park gang
7
member who was apparently in good standing. Given Freeman’s violation of the
8
norms generally believed to govern gang membership, House’s statements may have
9
been nothing more than an effort to pin the shooting on someone who was perceived
10
to have turned his back on his gang. See Frierson, 808 P.2d at 1205 (“The decision
11
whether trustworthiness is present [under section 1230] requires the court to apply to
12
the peculiar facts of the individual case a broad and deep acquaintance with the ways
13
human beings actually conduct themselves in the circumstances material under the
14
exception.”) (citation omitted); Michael L. Rich, Lessons of Disloyalty in the World
15
of Criminal Informants, 49 Am. Crim. L. Rev. 1493, 1518–19 (2012) (“[T]here is a
16
normative expectation that members of [a criminal] community will not reveal
17
incriminating information about other members to the police, particularly when
18
motivated purely by self-interest. In breaching that expectation, the criminal-
19
informant thus commits an act of disloyalty to the community of criminals.”).
20
Second, House was aware that Freeman was dead at the time he spoke to the
21
defense investigator. (ECF No. 5, Attach. 5 at 77.) This suggests House knew he
22
could attribute statements to Freeman without being contradicted or subjected to
23
retaliation. The fact that there was no real risk that House’s account would be
24
challenged reduced any pressure on House to speak truthfully. Under these
25
circumstances, the benefits of shifting the blame for the shooting from Ali to Freeman
26
almost certainly outweighed any potential costs.
27
Finally, House’s statements were not corroborated by any other evidence in
28
the case. This lack of corroboration stands in stark contrast to the circumstances
– 16 –
14cv898
1
surrounding the hearsay confessions at issue in Chambers. In Chambers, the Supreme
2
Court emphasized there were multiple forms of corroborating evidence that made the
3
excluded hearsay sufficiently reliable, including a separate sworn confession, the
4
testimony of an eyewitness to the shooting, testimony that the individual who
5
confessed was seen with a gun immediately after the shooting, and the “sheer number
6
of independent confessions.” Chambers, 410 U.S. at 300–01; see also Christian v.
7
Frank, 595 F.3d 1076 (9th Cir. 2010) (explaining that under Chambers, the reliability
8
of a hearsay confession is assessed by “the amount and quality of the evidence
9
corroborating the testimony about the confession[]”). Here, however, there were no
10
other witnesses linking Freeman to the shooting, no indication that Freeman
11
confessed his alleged involvement in the shooting to anyone else, and generally no
12
evidence to corroborate House’s account of Freeman’s statements. Absent such
13
corroboration, House’s statements lacked the “persuasive assurances of
14
trustworthiness” present in Chambers. Chambers, 410 U.S. at 302.
For these reasons, the Court finds that House’s statements were not sufficiently
15
16
reliable to require admission under Chambers.5
Porter’s Statements
17
4.
18
The Court turns now to statements made by Hunter Porter during a “free talk”
19
with the District Attorney’s (“DA”) office. Porter told the DA’s office that: (1) he
20
and Freeman had participated in several bank robberies together and that Freeman
21
22
23
24
25
26
27
28
5
Ali argues that the Ninth Circuit in Lunbery v. Hornbeak, 605 F.3d 754 (9th Cir. 2010), granted
federal habeas relief on a claim “materially indistinguishable” from his. (Pet’r’s Objs. 7:23–8:9.)
The Court disagrees with Ali’s characterization of Lunbery. In Lunbery, the Ninth Circuit
determined that the excluded hearsay—a statement in which the declarant admitted knowledge of
the murderers and of their mistake in killing the wrong person—was against the declarant’s penal
interest, and found that it was corroborated by other evidence in the case. Id. at 761. The Lunbery
court also emphasized that the hearsay statement was made spontaneously and shortly after the
murder. Here, however, House’s statements were not against his penal interest, nor corroborated by
other evidence. Further, the statements were not made spontaneously and shortly after the crime,
but rather almost two years later in response to a defense investigator’s request for an interview.
Thus, Ali’s reliance on Lunbery is unavailing.
– 17 –
14cv898
1
had lied to law enforcement when he told them he had never robbed a bank; (2)
2
Freeman took more than his share of proceeds from one of the bank robberies, leaving
3
other participants in the crime with a smaller share; and (3) unspecified portions of
4
the police report recounting Freeman’s interview with law enforcement were
5
“wrong.” (ECF No. 5, Attach. 29 at 6.)
6
Porter refused to testify, and the trial court excluded his statements as hearsay.
7
See Ali, 2013 WL 452901, at *10. The California Court of Appeal determined that
8
the trial court’s exclusion of the statements was not an abuse of discretion, and the
9
magistrate judge concluded that this determination was neither contrary to, nor an
10
unreasonable application of, clearly established federal law. (R & R 20.) Ali objects,
11
arguing that the statements were declarations against Porter’s penal interest, and thus
12
reliable under Chambers. Ali stresses that the statements could have been used to
13
impeach Freeman’s credibility, which in turn would have cast doubt on Freeman’s
14
claim that Ali committed the July 22, 2008 shootings. (Pet’r’s Objs. 8:10–10:23.)
15
The Court assumes without deciding that Porter’s statements, in which he
16
admits to participating in multiple bank robberies, were declarations against interest.
17
However, it is not enough that a hearsay statement run against the declarant’s penal
18
interest for the statement to be admitted; the statement must also be “clothed with
19
indicia of reliability.” Duarte, 12 P.3d at 1117; see also Chambers, 410 U.S. 300–01
20
(holding that hearsay statements that are critical to the defendant may not be excluded
21
as hearsay when the statements are made “under circumstances that provided
22
considerable assurance of their reliability”). That was not the case here.
23
First, Porter was a Lincoln Park gang member who, like House, had a strong
24
incentive to discredit disfavored gang member Freeman, while helping Ali. Second,
25
Porter told the DA’s office that “he’d heard rumors” Freeman was dead, suggesting
26
that Porter, like House, believed he could discredit Freeman without risk of
27
contradiction or retaliation. (ECF No. 5, Attach. 29 at 6.) Finally, the fact that Porter
28
went to the DA’s office on his own accord to review Freeman’s statements to law
– 18 –
14cv898
1
enforcement is strong evidence that Porter saw a benefit to doing so. Porter’s
2
initiative is a far cry from the circumstances under which declarations against interest
3
are considered to be especially reliable—such as where “the conversation occurs
4
between friends in a noncoercive setting that fosters uninhibited disclosures,” People
5
v. Greenberger, 68 Cal. Rptr. 2d 61, 81 (Ct. App. 1997) (citations omitted), or where
6
the declarant stands to “benefit nothing” by the statements, Chambers, 410 U.S. at
7
301. Here, Porter had plenty of reasons to talk to the DA’s office about Freeman,
8
whether it be to downplay Porter’s role in the bank robberies, punish Freeman for his
9
disloyalty to Lincoln Park, help exonerate Ali, or a combination of all three. Under
10
these circumstances, the Court finds that Porter’s statements were not made “under
11
circumstances that provided considerable assurance of their reliability” such that
12
Chambers required admission. Id. at 300.
13
Further, even if Porter’s statements should have been admitted, the trial court’s
14
exclusion of the statements did not prejudice Ali. On federal habeas review, a
15
constitutional error at trial will warrant relief only where the error “had substantial
16
and injurious effect or influence in determining the jury’s verdict.” Brecht v.
17
Abrahamson, 507 U.S. 619, 637–38 (1993). Here, the value to the defense of Porter’s
18
statements was to call into question Freeman’s credibility. However, evidence
19
impeaching Freeman’s credibility was admitted at trial through, among other
20
witnesses, Tiano Durham. Durham, a Lincoln Park gang member, testified that he
21
and Freeman robbed a bank together in 2007, even as Freeman later told law
22
enforcement he had never robbed a bank. (ECF No. 5, Attach. 34 at 78, 79.) Durham
23
also testified that on several occasions he provided Freeman with materiel and
24
supplies to commit robberies, and that Freeman did in fact carry out such crimes. (Id.
25
at 79, 80.) Therefore, Porter’s statements impeaching Freeman were cumulative of
26
other evidence already before the jury, and so did not seriously undermine Ali’s
27
defense. See, e.g., Villescas v. Hernandez, 163 F. App’x 612, 613 (9th Cir. 2006)
28
(finding that the trial court’s exclusion of evidence did not have a “substantial and
– 19 –
14cv898
1
injurious effect” on the jury’s verdict where the evidence “would have been
2
cumulative, and would have merely bolstered identical testimony offered at trial”);
3
Averilla v. Lopez, 862 F. Supp. 2d 987, 994 (N.D. Cal. 2012) (“If the evidence [sought
4
to be admitted on a right to present a defense claim] is considered cumulative, then
5
its exclusion did not result in a constitutional violation and no harmful error
6
occurred.”). The jury could have drawn the same inference from the Durham
7
testimony that the defense sought to support by offering Porter’s statements—
8
namely, that Freeman was not credible and so may have lied about Ali committing
9
the July 22, 2008 shootings. Accordingly, the Court finds that even if the trial court
10
erred in excluding Porter’s statements, that error did not have a “substantial and
11
injurious effect” on the jury’s verdict.6 Brecht, 507 U.S. at 638.
12
* * *
13
The Court finds that the trial court’s exclusion of hearsay statements by House
14
and Porter did not violate Ali’s right to present a defense. House’s statements were
15
not distinctly against his penal interest, and the circumstances surrounding the
16
statements did not provide sufficient assurance of their reliability. Porter’s statements
17
may have been against his interest, but the circumstances were such that Porter, like
18
House, had a strong incentive to discredit Freeman. Thus, in this case, the importance
19
of the excluded statements did not outweigh the legitimate and substantial state
20
interest in excluding unreliable evidence.7 See Alcala v. Woodford, 334 F.3d 862, 877
21
22
23
24
25
26
27
28
Another interpretation of Porter’s statements is that they were not “critical” to Ali’s defense under
Chambers. In Chambers, the Supreme Court found the hearsay confessions at issue critical because
Chambers’ defense was “far less persuasive” than it would have been had the confessions been
admitted. Id. at 294. In this case, however, whether Porter’s statements were admitted or excluded,
the jury’s perception of Freeman would have been substantially the same. Thus, Porter’s statements
were not essential to Ali’s ability to present a defense.
6
7
The Court notes that Ali attempts to reduce the balancing test in Miller to a purely numerical
exercise whereby the presence of a majority of the factors weighing in favor of admission is
sufficient to require admission under Chambers. (Pet’r’s Objs. 7:16–22.) This approach is
unwarranted. The Miller factors are not meant to be standalone variables with pre-assigned
“values,” but rather to provide a means of assessing whether evidence is critical and reliable under
– 20 –
14cv898
1
(9th Cir. 2003) (“While ‘the right to present a defense is fundamental,’ ‘the state’s
2
legitimate interest in reliable and efficient trials is also compelling.’”) (quoting Perry,
3
713 F.2d at 1450–51); Miller, 757 F.2d at 995 (citing Perry, 713 F.2d at 1452–53).
4
The California Court of Appeal’s denial of this claim was neither contrary to, nor an
5
unreasonable application of, clearly established federal law. Accordingly, Ali is not
6
entitled to habeas relief on this claim.
7
B.
Failure to Instruct on Third-Party Culpability
8
Ali argues that the trial court violated his due process and fair trial rights when
9
it refused to give the jury a pinpoint instruction on third-party culpability. The
10
California Court of Appeal denied this claim, and the magistrate judge concluded that
11
this decision was neither contrary to, nor an unreasonable application of, clearly
12
established federal law. (R & R 27.) Ali objects, arguing that the evidence was
13
sufficient under governing Supreme Court law to require the trial court to give the
14
requested instruction. (Pet’r’s Objs. 11–13.)
15
“As a general proposition a defendant is entitled to an instruction as to any
16
recognized defense for which there exists evidence sufficient for a reasonable jury to
17
find in his favor.” Mathews v. United States, 485 U.S. 58, 63 (1988) (citing Stevenson
18
v. United States, 162 U.S. 313 (1896)). “This is so because the right to present a
19
defense ‘would be empty if it did not entail the further right to an instruction that
20
allowed the jury to consider the defense.’” Bradley v. Duncan, 315 F.3d 1091, 1099
21
(9th Cir. 2002) (quoting Tyson v. Trigg, 50 F.3d 436, 448 (7th Cir. 1995)).
22
To obtain relief on an instructional error claim, a petitioner must show that the
23
24
25
26
27
28
Chambers. This means that it is not the number of Miller factors that matters, but whether
consideration of those factors, overall, demonstrates that federal due process requires admission of
the excluded evidence. It is entirely possible for a court to find a majority of the Miller factors
satisfied (for example, high probative value, sole evidence on the issue, and major part of the
defense), but still find that the evidence was properly excluded because it was unreliable. The
analysis is qualitative, not arithmetic. See Perry, 713 F.2d at 1453 (“Due process draws a boundary
beyond which state rules cannot stray; it does not displace the law of evidence with a constitutional
balancing test.”).
– 21 –
14cv898
1
error “so infected the entire trial that the resulting conviction violates due process.”
2
Estelle v. McGuire, 502 U.S. 62, 72 (1991). Where, as here, the alleged error is failure
3
to give an instruction, a petitioner’s burden is “especially heavy” because “[a]n
4
omission, or an incomplete instruction, is less likely to be prejudicial than a
5
misstatement of the law.” Henderson v. Kibbe, 431 U.S. 145, 155 (1977). In assessing
6
whether failure to give an instruction violates federal due process, courts consider
7
“the evidence in the case” and the “overall instructions given to the jury.” Duckett v.
8
Godinez, 67 F.3d 734, 745 (9th Cir. 1995) (citing Cupp v. Naughten, 414 U.S. 141,
9
146–47 (1973)). “It is not reversible error to reject a defendant’s proposed instruction
10
on his theory of the case if other instructions, in their entirety, adequately cover that
11
defense theory.” United v. Dees, 34 F.3d 838, 842 (9th Cir. 1994) (citation omitted).
12
Ali requested the following instruction on third-party culpability:
13
You have heard evidence that a person other than the defendant may have
committed the offense with which the defendant is charged. The
defendant is not required to prove the other person’s guilt beyond a
reasonable doubt. Defendant is entitled to an acquittal if the evidence
raises a reasonable doubt in your minds as to the defendant’s guilt. Such
evidence may by itself raise a reasonable doubt as to the defendant’s
guilt. However, its weight and significance, if any, are matters for your
determination. If after consideration of this evidence, you have a
reasonable doubt that the defendant committed this offense, you must
give the defendant the benefit of the doubt and find [him][her] not guilty.
(ECF No. 5, Attach. 6 at 152.)
14
15
16
17
18
19
20
Ali points to four pieces of evidence to support the argument that his proposed
21
instruction was constitutionally required: (1) a witness named Canute Dawes testified
22
that the College Avenue shooting may have been committed by Crip gang members
23
in retaliation for an earlier altercation between Dawes and a female Crip gang
24
associate; (2) witnesses testified that before the Harbor View shooting one of the
25
shooters used a Crips’ greeting (“What’s up, cuz”) before firing; (3) there was
26
evidence that Freeman had no alibi during the time of the Harbor View shooting; and
27
(4) there was testimony that Freeman regularly visited and occasionally spent nights
28
at Ali’s apartment and so had an opportunity to plant the shell casing that police found
– 22 –
14cv898
1
in Ali’s bedroom. (Pet’r’s Objs. 12.) Ali contends that given this evidence, the trial
2
court’s failure to instruct the jury on third-party culpability was contrary to Mathews.
3
The Court finds Ali’s argument unpersuasive. None of the evidence pointed to
4
by Ali, taken alone or together, sufficiently links a third party to the shootings such
5
that due process required the trial court to give Ali’s proposed instruction. Mathews,
6
485 U.S. at 63 (“[A] defendant is entitled to an instruction as to any recognized
7
defense for which there exists evidence sufficient for a reasonable jury to find in his
8
favor.”) (emphasis added). Although some of the evidence suggests a possible motive
9
by Crip gang members, and possible opportunity by Freeman, evidence of possible
10
motive and opportunity by a third party, without more, is insufficient to raise a
11
reasonable doubt as to Ali’s guilt. See Flores v. McDonald, No. 1:10–cv–02234–
12
LJO–JLT, 2013 WL 5934340, at *7 (E.D. Cal. Nov. 5, 2013) (“Before an instruction
13
on third party culpability may properly be given, there must be substantial evidence
14
capable of raising a reasonable doubt about the defendant’s guilt, and there must be
15
direct or circumstantial evidence linking the third party to the crime.”); People v.
16
Prince, 156 P.3d 1015, 1061 (Cal. 2007) (“Evidence of mere motive and opportunity
17
to commit the crime in another person, without more, will not suffice to raise a
18
reasonable doubt about a defendant’s guilt: there must be direct or circumstantial
19
evidence linking the third person to the actual perpetration of the crime.”) (quoting
20
People v. Robinson, 124 P.3d 363, 385 (Cal. 2005)). Other evidence cited by Ali—
21
e.g., the use of a Crips’ greeting by one of the shooters and Freeman’s regular visits
22
and occasional overnight stays at Ali’s apartment—was speculative in its
23
implications, and thus had little probative force. See, e.g., Spivey v. Rocha, 194 F.3d
24
971, 978 (9th Cir. 1999) (characterizing evidence of third-party culpability as “purely
25
speculative” where it did not “link any third party to the [crime], or establish an actual
26
motive rather than a possible or potential motive”). Thus, because the evidence was
27
insufficient to raise a reasonable doubt about Ali’s guilt, the trial court was not
28
required to give the proposed instruction under Mathews. See, e.g., Morales v.
– 23 –
14cv898
1
Barnes, No. CV 12–4219–MMM (DTB), 2013 WL 4832713, at *6–7 (C.D. Cal. Sept.
2
10, 2013) (evidence that a third party had motive and opportunity to shoot the victim
3
was insufficient to warrant a jury instruction on third party culpability where
4
evidence did not plausibly connect third party to the shooting). The California Court
5
of Appeal’s denial of this claim was neither contrary to, nor an unreasonable
6
application of, clearly established federal law.
7
Ali argues that Mathews requires only the existence of “some evidence” of
8
third-party culpability to require the relevant jury instruction. Citing Stevenson v.
9
United States, 162 U.S. 313 (1896), a 19th-century Supreme Court case on which the
10
Mathews holding is based, Ali argues that a defense-theory instruction must be given
11
“so long as there is some evidence upon the subject[.]” Stevenson, 162 U.S. at 314.
12
The Court finds no inconsistency between Mathews and Stevenson. Although
13
Mathews employs more precise language in outlining the governing legal principle,
14
the language from Stevenson cited by Ali reflects the circumstances of that case rather
15
than a more liberal legal standard. Indeed in Stevenson, where the issue was whether
16
the trial court erred in refusing to give a jury instruction on manslaughter, the Court
17
explained that the relevant question was whether there was “enough” evidence “to
18
require the submission of the question of manslaughter to a jury.” Id. at 319. This is
19
entirely consistent with the standard in Mathews that there be “evidence sufficient for
20
a reasonable jury to find in [defendant’s] favor.” Mathews, 485 U.S. at 63. Under
21
either case, the evidence here was insufficient because it did not connect a third-party
22
to the shootings with which Ali had been charged. Thus, Ali’s reliance on a supposed
23
discrepancy between Mathews and Stevenson is unavailing.
24
The Court also finds that the overall charge to the jury rendered a separate
25
instruction on third-party culpability unnecessary. The trial court instructed the jury
26
with CALCRIM No. 220, the standard reasonable doubt instruction, which stated in
27
part:
28
A defendant in a criminal case is presumed to be innocent. This
– 24 –
14cv898
7
presumption requires that the People prove a defendant guilty beyond a
reasonable doubt. . . .
Proof beyond a reasonable doubt is proof that leaves you with an abiding
conviction that the charge is true. The evidence need not eliminate all
possible doubt because everything in life is open to some possible or
imaginary doubt.
In deciding whether the People have proved their case beyond a
reasonable doubt, you must impartially compare and consider all the
evidence that was received throughout the entire trial. Unless the
evidence proves the defendant guilty beyond a reasonable doubt, he is
entitled to an acquittal and you must find him not guilty.
8
(ECF No. 5, Attach. 6 at 160.)
9
This reasonable doubt instruction, along with others given to the jury,8 properly
10
explained the presumption of innocence, the State’s burden of proof, and the meaning
11
of reasonable doubt. Ali’s proposed instruction, which merely reframes the burden
12
of proof around evidence of third party culpability, was essentially duplicative—it
13
added nothing material to the jury’s understanding of its duty in assessing Ali’s guilt.
14
Indeed, defense counsel argued its third-party culpability theory at length at closing
15
argument, explaining to the jury its belief that evidence of third-party culpability
16
prevented the State from carrying its burden of proof. (ECF No. 5, Attach. 35 at 118–
17
47.) This was sufficient to cover Ali’s defense theory. See People v. Hartsch, 232
18
P.3d 663, 692 (Cal. 2010) (“It is hardly a difficult concept for the jury to grasp that
19
acquittal is required if there is reasonable doubt as to whether someone else
20
committed the charged crimes.”). Under these circumstances, the Court finds the trial
21
court was not required to given an additional instruction on third-party culpability.
22
See United States v. Del Toro-Barboza, 673 F.3d 1136, 1147 (9th Cir. 2012) (“[A]
23
court may reject a defendant’s requested instruction if other instructions reasonably
1
2
3
4
5
6
24
25
26
27
28
8
For example, CALCRIM No. 315, the instruction on eyewitness identification, restated that the
People had the burden to prove Ali’s guilt beyond a reasonable doubt. (ECF No. 5, Attach. 6 at
172–73.) In addition, CALCRIM No. 373 instructed the jury that “[t]he evidence shows that
another person may have been involved in the commission of the crime[s] charged against the
defendant,” and that their “duty [was] to decide whether the defendant on trial here committed the
crimes charged.” (Id. at 184.)
– 25 –
14cv898
1
cover the theory of the defense.”); Gonzales v. Virga, No. 1:11–CV–02122 LJO GSA
2
HC, 2012 WL 6004520, at *23 (E.D. Cal. Nov. 30, 2012) (finding the trial court’s
3
failure to instruct on third party culpability harmless where “the jury was instructed
4
on the burden of proof and reasonable doubt, and the jury was well aware of the
5
defense theory based on defense counsel’s arguments”).
6
In sum, the Court finds that the California Court of Appeal’s denial of Ali’s
7
instructional error claim was neither contrary to, nor an unreasonable application of,
8
clearly established federal law. The evidence did not sufficiently link a third party to
9
the shootings, and the instructions as a whole adequately covered Ali’s defense
10
theory. Accordingly, Ali is not entitled to habeas relief on this claim.
11
C.
Juror Misconduct and Admissibility of Juror Affidavit
12
Ali argues that his due process and jury trial rights were violated by juror
13
misconduct, and that the trial court should have admitted a declaration by Juror 5 as
14
part of the inquiry into the verdict’s fairness.9 In his declaration, Juror 5 attests that
15
at the outset of deliberations Juror 6 told fellow jurors that “he was voting for guilt
16
[because] he figured the District Attorney knew what he was doing,” and that if the
17
DA “had enough evidence to say [Ali] was guilty, then he must be guilty.” (ECF No.
18
5, Attach. 6 at 275.) The California Court of Appeal found this portion of Juror 5’s
19
declaration to be inadmissible, and the magistrate judge concluded this determination
20
was neither contrary to, nor an unreasonable application of, clearly established
21
federal law. Ali objects, arguing that Juror 6’s statement was admissible under
22
Federal Rule of Evidence 606(b), and that even if the statement was properly
23
excluded under Rule 606(b), admission was compelled by governing Supreme Court
24
law in Warger v. Shauers, 574 U.S. —, 135 S. Ct. 521 (2014), and Irvin v. Dowd,
25
366 U.S. 717 (1961).
26
27
28
Although Ali’s First Amended Petition sought admission of other juror declarations to impeach
the verdict, Ali’s Objections challenge only the magistrate judge’s conclusion on the admissibility
of Juror 5’s declaration. (Pet’r’s Objs. 15–17.)
9
– 26 –
14cv898
1
“The prohibition on admitting juror testimony to challenge the validity of a
2
verdict is longstanding.” United States v. Leung, 796 F.3d 1032, 1033 (9th Cir. 2015)
3
(citation omitted). “[T]his principle is found in Federal Rule of Evidence 606(b),
4
which is a powerful shield against the efforts of litigants to overturn verdicts based
5
on the real or perceived flaws of the juries that decided their cases.” Id.
6
Under Rule 606(b), “a juror may not testify about any statement made or
7
incident that occurred during the jury’s deliberations; the effect of anything on that
8
juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict
9
or indictment.” Fed. R. Evid. 606(b)(1). Although the Rule contains exceptions for
10
testimony about “extraneous prejudicial information” or “outside influence” that
11
tainted the verdict, Fed. R. Evid. 606(b)(2), “juror testimony regarding the jury’s
12
‘internal processes’ is categorically barred,” Leung, 796 F.3d at 1035 (citation
13
omitted).10
14
Here, the Court finds that Juror 5’s testimony recounting Juror 6’s statement
15
falls squarely within the Rule 606(b) prohibition for at least two reasons. First, the
16
statement at issue was a “statement made . . . during the jury’s deliberations.” Fed.
17
R. Evid. 606(b)(1). The declaration itself states that Juror 6 made his comments
18
“[d]uring deliberations” when the jurors “first went around the table and each said
19
which way we were leaning, and why.” (ECF No. 5, Attach. 6 at 274.) Thus, the
20
statement is inadmissible by the plain language of the Rule. See United States v.
21
Farmer, 717 F.3d 559, 565 (7th Cir. 2013) (“Rule 606(b)(1) bars juror testimony on,
22
and court consideration of, the jury’s internal deliberations, including the jurors’
23
discussions and mental processes.”).
24
Second, Juror 6’s statement involves his “mental processes concerning the
25
verdict.” Fed. R. Evid. 606(b)(1). The affidavit states that Juror 6 gave as his reason
26
27
28
Rule 606(b)(2) also contains an exception for testimony about whether “a mistake was made in
entering the verdict on the verdict form.” Fed. R. Evid. 606(b)(2)(C). That exception is not at issue
here.
10
– 27 –
14cv898
1
for “leaning” towards a guilty vote that “he figured the District Attorney knew what
2
he was doing.” Such reasoning, even as it involves an apparent bias in favor of the
3
prosecution, is part of Juror 6’s thought processes concerning the verdict, and so is
4
shielded by Rule 606(b). United States v. Pimentel, 654 F.2d 538, 542 (9th Cir. 1981)
5
(“Testimony of a juror concerning the motive of individual jurors and conduct during
6
deliberation is not admissible.”); Hatcher v. County of Alameda, No. C09–01650
7
TEH, 2011 WL 4634053, at *4 (N.D. Cal. Oct. 5, 2011) (testimony stating that the
8
jury reached its decision based on the fact that Plaintiff was a prisoner, and not on the
9
merits of the case, was barred under Rule 606(b) because it contained “only
10
information about jury motives and personal bias”). Thus, Juror 5’s testimony
11
regarding Juror 6’s statement is inadmissible under Rule 606(b).11
12
Ali contends that Rule 606(b) aside, the Supreme Court’s decision in Warger
13
v. Shauers, 135 S. Ct. 521 (2014), requires admission of Juror 5’s declaration to
14
protect Ali against “extreme” misconduct by Juror 6. (Pet’r’s Objs. 16:20–17:6.) In a
15
footnote in Warger, the Supreme Court stated that “[t]here may be cases of juror bias
16
so extreme that, almost by definition, the jury trial right has been abridged.” 135 S.
17
Ct. at 529 n.3. Ali contends this is such a case.
18
Ali’s argument is unpersuasive on the merits, but also fails for a more
19
fundamental reason—it is not based on clearly established federal law. In Warger,
20
the Court expressly declined to consider what would constitute a case of juror bias so
21
22
23
24
25
26
27
28
Ali argues that Juror 6’s statement indicated a refusal to deliberate because, according to Juror 5,
he “never said another word” after making his initial remarks. This is unpersuasive. As the
California Court of Appeal reasonably concluded, Juror 6’s comments were statements of the
rationale for his views on Ali’s guilt. In other words, the statements themselves constituted
deliberation. And even if Juror 6 “never said another word” after his initial comments, the Court
cannot assume, without more, that this silence reflected an unwillingness to listen and consider
other viewpoints as other jurors shared their thoughts. Thus, the Court finds that Juror 5’s
declaration is not evidence of Juror 6’s refusal to deliberate. See People v. Thompson, 231 P.3d
289, 339 (Cal. 2010) (finding that juror declarations did not indicate a refusal to deliberate where
the declarations failed to “present examples of objective failure to deliberate, such as jurors who
turned their backs or otherwise objectively segregated themselves from deliberations”).
11
– 28 –
14cv898
1
extreme that a defendant would be entitled to pierce jury deliberations to preserve the
2
jury trial right. The Court stated: “We need not consider the question . . . for those
3
facts are not presented here.” Id. Thus, because the Supreme Court has not determined
4
the issue, there is no “clearly established” federal law to which the state court was
5
required to adhere. See Wright v. Van Patten, 552 U.S. 120, 125–26 (2008) (per
6
curiam) (holding that a state court decision cannot be contrary to clearly established
7
federal law where no decision of the Supreme Court “squarely addresses the issue”
8
or provides a “clear answer to the question presented”). If anything, the Supreme
9
Court’s relevant holdings indicate that Ali’s right to an impartial jury was protected
10
by basic features of the trial process that guard against juror prejudice. See Warger,
11
135 S. Ct. at 529 (“Even if jurors lie in voir dire in a way that conceals bias, juror
12
impartiality is adequately assured by the parties’ ability to bring to the court’s
13
attention any evidence of bias before the verdict is rendered, and to employ nonjuror
14
evidence even after the verdict is rendered.”); Tanner v. United States, 483 U.S. 107,
15
127 (1987) (finding that a defendant’s Sixth Amendment right to an unimpaired jury
16
is protected by, among other things, the voir dire process, the ability of the court and
17
counsel to observe jurors during the trial, and the ability of jurors to make pre-verdict
18
reports of inappropriate juror behavior). The California Court of Appeal’s decision
19
was not contrary to these holdings.
20
Finally, Ali argues that the California Court of Appeal’s denial of his claim of
21
juror misconduct was contrary to Irvin v. Dowd, 366 U.S. 717 (1961). In Irvin, a
22
capital murder case, the pretrial publicity reached a level of such intensity and
23
pervasiveness that two-thirds of the impaneled jury admitted to believing the
24
defendant was guilty before hearing any testimony. Id. at 727–28. Noting the “pattern
25
of deep and bitter prejudice shown to be present throughout the community,” the
26
Supreme Court concluded that the defendant’s trial failed to meet constitutional
27
standards of impartiality. Id.
28
In light of the extreme circumstances at play in Irvin, Ali’s reliance on that
– 29 –
14cv898
1
case is misplaced. Although Irvin did not involve Rule 606(b), the build-up of
2
prejudice described in that case was such that it would have constituted “extraneous
3
prejudicial information” or an “outside influence” plainly admissible under the Rule.
4
If Ali was seeking to introduce evidence of the kind of intense, community-wide
5
prejudice found in Irvin, Rule 606(b) almost certainly would not bar admission.
6
Here, however, the alleged bias was voiced by a single juror during jury
7
deliberations. At no point in his declaration does Juror 5 suggests that Juror 6’s
8
apparent bias in favor of the DA was the result of “extraneous prejudicial
9
information” or “outside influence,” let alone of the scale and scope that compelled
10
the Irvin Court to find a violation of the right to an impartial jury. Thus, Irvin does
11
not support the argument that Juror 6’s alleged bias shows that the verdict was not
12
based on the evidence. Juror 6’s belief that the “District Attorney knew what he was
13
doing” simply does not constitute the type of extraneous, pervasive prejudice found
14
in Irvin.
15
In sum, the portion of Juror 5’s declaration describing Juror 6’s statements
16
during deliberations was inadmissible under Federal Rule of Evidence 606(b), and its
17
admissibility was not otherwise required by Warger. In addition, Juror 6’s apparent
18
bias in favor of the prosecution was not the type of extraneous, pervasive prejudice
19
that infected defendant’s trial in Irvin. Thus, the Court concludes that the California
20
Court of Appeal’s resolution of this claim was neither contrary to, nor an
21
unreasonable application of, clearly established federal law. Ali is not entitled to
22
habeas relief on this claim.
23
D.
Cumulative Error
24
Ali contends that the cumulative effect of the above alleged constitutional
25
errors violated his due process and fair trial rights. (Pet’r’s Objs. 18.) The California
26
Court of Appeal denied this claim, finding there could be no cumulative error where
27
none of Ali’s individual claims had merit. The magistrate judge similarly found that
28
“[b]ecause no errors occurred, no cumulative error is possible.” (R & R 73.)
– 30 –
14cv898
1
“The cumulative effect of multiple errors can violate due process even where
2
no single error rises to the level of a constitutional violation or would independently
3
warrant reversal.” Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007) (citing
4
Chambers, 410 U.S. at 290 n.3). This occurs where the aggregate impact of individual
5
errors “renders the resulting trial fundamentally unfair.” Id. Under the cumulative
6
effects doctrine, habeas relief is warranted “when there is a ‘unique symmetry’ of
7
otherwise harmless errors, such that they amplify each other in relation to a key
8
contested issue in the case.” Ybarra v. McDaniel, 656 F.3d 984, 1001 (9th Cir. 2011)
9
(quoting Parle, 505 F.3d at 933).
10
Having reviewed the grounds for relief that Ali pursues on objection, the Court
11
has determined that no errors occurred. As a result, there are no errors to accumulate
12
to the level of a constitutional violation. See Hayes v. Ayers, 632 F.3d 500, 524 (9th
13
Cir. 2011) (explaining that where “no error of constitutional magnitude occurred, no
14
cumulative prejudice is possible”) (citation omitted). Thus, the California Court of
15
Appeal’s denial of this claim was neither contrary to, nor an unreasonable application
16
of, clearly established federal law. Ali is not entitled to habeas relief on this claim.
17
CONCLUSION AND ORDER
18
Federal habeas review serves a vital function in our federal system. Deeply
19
rooted in this Nation’s constitutional traditional is the belief that the diffusion of
20
power between the Federal Government and the States provides an indispensable
21
safeguard for individual liberty. See, e.g., The Federalist No. 51, at 323 (James
22
Madison) (C. Rossiter ed., 1961) (“In the compound republic of America, the power
23
surrendered by the people is first divided between two distinct governments, and then
24
the portion allotted to each subdivided among distinct and separate departments.
25
Hence a double security arises to the rights of the people.”). Federal habeas review
26
advances this liberty-preserving ideal by ensuring that state criminal processes
27
conform to federal constitutional requirements. See Gary Peller, In Defense of
28
Federal Habeas Corpus Relitigation, 16 Harv. C.R.-C.L. L. Rev. 579, 668 (1982)
– 31 –
14cv898
1
(“[F]ederal habeas corpus review exists not only to correct errors that state courts
2
may make in applying constitutional law in particular cases, but also to deter state
3
courts from misconstruing constitutional guarantees.”). Where a state prisoner attacks
4
his conviction on federal grounds, providing the prisoner a federal forum in which to
5
relitigate his claims helps to check underenforcement of constitutional values by the
6
States and maintain a relative equilibrium in the federal-state balance. See Larry
7
Yackle, Explaining Habeas Corpus, 60 N.Y.U. L. Rev. 991, 1008 (1985) (“The
8
establishment of collateral review through habeas did not represent a brazen grab for
9
national power at the expense of the states, but rather an attempt to ensure the
10
enforcement of unpopular substantive principles that the state courts might not
11
respect.”).
12
Although critical in function, however, federal habeas review after AEDPA is
13
narrow in scope. Under AEDPA, when a state court has adjudicated a federal claim
14
on the merits, a federal court may not grant habeas relief on the claim unless the state
15
court’s decision was contrary to, or involved an unreasonable application of, clearly
16
established federal law, or was based on an unreasonable determination of the facts.
17
28 U.S.C. §§ 2254(d)(1), (d)(2). The Supreme Court’s line of decisions interpreting
18
AEDPA has steadily expanded the degree of deference that federal courts owe to the
19
states when reviewing constitutional challenges brought by state prisoners. This has
20
narrowed the scope of federal habeas review and restricted the ability of federal
21
courts to provide post-conviction relief. Commentators have offered thoughtful
22
critiques of these doctrinal developments. See, e.g., Stephen R. Reinhardt, The
23
Demise of Habeas Corpus and the Rise of Qualified Immunity: The Court’s Ever
24
Increasing Limitations on the Development and Enforcement of Constitutional Rights
25
and Some Particularly Unfortunate Consequences, 113 U. Mich. L. Rev. 1219
26
(2015). But this criticism, however warranted, does not lessen this Court’s obligation
27
to faithfully follow Supreme Court law.
28
Here, the Court concludes that the California Court of Appeal’s denial of Ali’s
– 32 –
14cv898
1
claims for relief was neither contrary to, nor an unreasonable application of, clearly
2
established federal law. The hearsay statements by House and Porter were either not
3
against their penal interest or were not sufficiently reliable to require admission under
4
Chambers; the evidence was insufficient to require the trial court to give a jury
5
instruction on third-party culpability under Mathews; Juror 5’s declaration recounting
6
Juror 6’s statements during deliberations was inadmissible under Rule 606(b); and
7
there was no cumulative error because no individual error occurred. Thus, Ali is not
8
entitled to federal habeas relief.12
9
For the foregoing reasons, the Court OVERRULES Petitioner’s objections,
10
ADOPTS the Report and Recommendation, and DENIES the First Amended
11
Petition for Writ of Habeas Corpus. The Clerk of Court shall enter judgment in favor
12
of Respondents and close the file.13
13
IT IS SO ORDERED.
14
15
DATED: February 22, 2017
16
17
18
19
The Court has also reviewed Magistrate Judge Gallo’s conclusions on the eight claims for relief
to which Ali has not objected and finds the magistrate judge’s reasoning sound and his conclusions
well-grounded in law. The Court approves and adopts these findings.
12
20
21
22
23
24
25
26
27
28
13
Under 28 U.S.C. § 2253(c)(1), a petitioner may not appeal a final order in a federal habeas
proceeding without first obtaining a certificate of appealability (“COA”). Rule 11(a) of the Rules
Governing Section 2254 Cases requires a district court to issue or deny a COA when it enters a
final order adverse to the petitioner. A COA may issue only if the petitioner “has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this
standard by demonstrating that jurists of reason could disagree with the district court’s resolution
of his constitutional claims or that jurists could conclude the issues presented are adequate to
deserve encouragement to proceed further.” Miller–El v. Cockrell, 537 U.S. 322, 327 (2003).
Here, Ali has not made the requisite substantial showing. Reasonable jurists would not find the
Court’s resolution of Ali’s constitutional claims debatable or incorrect. See Slack v. McDaniel, 529
U.S. 473, 484 (2000). Therefore, the Court DECLINES to issue a COA.
– 33 –
14cv898
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?