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)

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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

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