Butler v. Montgomery et al

Filing 22

ORDER Adopting 21 Report and Recommendation Denying Petition for Writ of Habeas Corpus; and Denying Certificate of Appealability. Signed by Judge Gonzalo P. Curiel on 4/12/17. (All non-registered users served via U.S. Mail Service)(dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DARIUS BUTLER

Case No. 3:16-cv-00039-GPC-MDD
Petitioner,

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ORDER:

vs.
W. L. MONTGOMERY, et al.,

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(1) ADOPTING REPORT AND
RECOMMNEDATION DENYING
PETITION FOR WRIT OF HABEAS
CORPUS; AND

Respondents.

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(2) DENYING A CERTIFICATE OF
APPEALABILITY

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On January 7, 2016, Petitioner Darius Butler (“Petitioner”), a state prisoner

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proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas Corpus

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(“Petition”) in federal court pursuant to 28 U.S.C. § 2254. (Dkt. No. 1.) He challenges his

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state court convictions in San Diego Superior Court Case No. SDC237121 for attempted

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murder, kidnapping, and forcible sodomy and oral copulation, for which he is sentenced to

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50 years-to-life plus 19 years in state prison. (Dkt. No. 1, Pet. at 1-2, 151.)

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On October 11, 2016, pursuant to 28 U.S.C. § 636(b)(1), Magistrate Judge Mitchell

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D. Dembin issued a Report and Recommendation (“Report”) that this Court deny the

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Petition. (Dkt. No. 21.) Petitioner did not file an objection.

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After careful consideration of the pleadings and relevant exhibits submitted by the

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parties, the Court finds Magistrate Judge Dembin’s Report to be thorough, complete, and

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an accurate analysis of the legal issues presented in the Petition. For the reasons explained

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below, this Court: (1) ADOPTS the Magistrate Judge’s Report in its entirety denying the

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petition for writ of habeas corpus, and (2) DENIES a certificate of appealability.

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BACKGROUND

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A. Procedural Background

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On March 26, 2012, the San Diego County District Attorney’s Office filed a third

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amended felony complaint charging Petitioner with kidnapping for the purpose of

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committing sodomy and/or oral copulation in violation of California Penal Code (“Penal

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Code”) section 209(b)(1) (Count 1), forcible oral copulation in violation of Penal Code

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section 288(c)(2)(A) (Count 2), sodomy by use of force in violation of Penal Code section

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288(c)(2)(A) (Count 3), and attempted murder in violation of Penal Code section 187(a)

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(Count 4). (Dkt. No. 13-7, Lodgment No. 2, Clerk’s Tr. [“CT”] at 21-252.) As to all counts

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the complaint alleged that Petitioner used a deadly weapon (a knife) and committed the

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offenses while he was released on bail. (Id.) As to counts 2-4 the complaint alleged he

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inflicted great bodily injury on the victim, and as to counts 2 and 3 it alleged he

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substantially increased the risk of harm by kidnapping the victim. (Id.)

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Page numbers are based on the CM/ECF pagination.
Page numbers of the state court record are based on the state court’s pagination.
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Following a jury trial, Petitioner was found guilty on all counts. (Dkt. No. 13-9,

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Lodgment No. 2, CT at 371-80.) The jury found true the allegations that he was released

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on bail at the time of the offenses, that he substantially increased the risk of harm to the

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victim by kidnapping her with respect to counts 2 and 3, that he personally inflicted great

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bodily injury during the commission of counts 3 and 4, and that he personally used a deadly

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weapon during the commission of count 4. (Id.) The jury returned not true findings that he

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used a deadly weapon during the commission of counts 1-3 and inflicted great bodily injury

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during the commission of count 2. (Id.) A new trial motion argued, inter alia, that the

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investigation into juror misconduct was inadequate. (Dkt. No. 13-8, Lodgment No. 2, CT

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at 184-208.) That motion was denied and Petitioner was sentenced to 50 years-to-life plus

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19 years in state prison. (Dkt. No. 13-9, Lodgment No. 2, CT at 383-85.)

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Petitioner raises five challenges to his state court conviction. (Dkt. No. 1, Pet.)

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Petitioner claims his due process rights were violated by the trial court’s failure to sua

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sponte instruct the jury on attempted voluntary manslaughter as a lesser included offense

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of attempted murder (Claim 1), on the Petitioner’s reasonable but mistaken belief the

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victim consented (Claim 2), and on the defense of accident (Claim 3). (Id. at 17-31.)

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Petitioner also claims the trial court failed to adequately investigate potential juror

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misconduct (Claim 4), and that he received ineffective assistance of counsel due to his trial

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counsel’s failure to object to comments made by the prosecutor during closing arguments

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(Claim 5). (Id. at 32-46.)

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Petitioner appealed his conviction with the California Court of Appeal, raising

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Claims 1-4 presented here. (Dkt. Nos. 13-10, Lodgment No. 3.) While the appeal was

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pending in the appellate court, Petitioner’s appellate counsel withdrew Claim 3 on the basis

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that the claim “has been resolved by the California Supreme Court.” (Dkt. No. 13-11,

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Lodgment No. 4.) The state appellate court affirmed the convictions in a written opinion.

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(Dkt. No. 13-14, Lodgment No. 7.) Petitioner then filed a petition for review in the

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California Supreme Court presenting Claims 1-4 raised here. (Dkt. No. 13-15, Lodgment

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No. 8.) Petitioner included the previously withdrawn Claim 3 and requested a remand for
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the appellate court to consider the claim. (Id. at 26.) On October 16, 2014, the California

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Supreme Court summarily denied the petition for review in an order which stated: “The

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petition for review is denied.” (Dkt. No. 13-16, Lodgment No. 9.) Petitioner thereafter filed

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habeas petitions in the state superior, appellate and supreme courts raising Claim 5. (Dkt.

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Nos. 13-17, 13-19, 13-21, 13-22, Lodgment Nos. 10, 12, 14, 15.) The claim was denied on

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the merits by the superior and appellate courts, and summarily denied without citation of

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authority by the state supreme court. (Dkt. Nos. 13-18, 13-20, 13-23, Lodgment Nos. 11,

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13, 16.)

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On January 7, 2016, Petitioner filed the present Petition, alleging that his state court

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conviction violated his federal constitutional rights on the basis of Claims 1-5. (Dkt. No.

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1, Pet.) Respondent filed an Answer and lodged the state court records on March 7, 2016,

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arguing habeas relief is unavailable because (a) Claim 1 and 2 do not present a federal

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question, but even if they do the decisions of the state courts are entitled to deference

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because the adjudication of those claims is neither contrary to nor an unreasonable

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application of Supreme Court precedence; (b) Claim 3 is unexhausted, procedurally

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defaulted and does not present a federal question, but can be denied irrespective of the

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failure to exhaust because it is without merit; and (c) the state court denials of Claim 4 and

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Claim 5 are neither contrary to nor an unreasonable application of Supreme Court

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precedence. (Dkt. No. 12; 12-1 at 11-49; 13.) On June 14, 2016, Petitioner filed a Traverse

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in which he admits Claim 3 is unexhausted and procedurally defaulted and requests it be

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withdrawn from his Petition, but argues that his remaining claims have merit. (Dkt. No. 20,

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Traverse at 2, 13-37.)

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B. Factual Background

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This Court gives deference to state court findings of fact and presumes them to be

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correct; Petitioner may rebut the presumption of correctness, but only by clear and

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convincing evidence. See 28 U.S.C. § 2254(e)(1); see also Parle v. Fraley, 506 U.S. 20, 35-

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36 (1992) (holding findings of historical fact, including inferences properly drawn from

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these facts, are entitled to statutory presumption of correctness). The following facts are
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taken from the unpublished California Court of Appeal opinion, affirming Petitioner’s

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conviction. (Dkt. No. 13-14, Lodgment No. 7, People v. Butler, No. D063890 (Cal. App.

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4th July 22, 2014).)

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A. Incidents
In 2010, Butler was in his early 20’s and a tall, strong ex-Marine when he
met 20-year-old Danielle (5’3” tall). They had a harmonious romantic and
sexual relationship for about four months. He gave her a knife and taught her
how to use it. They started to argue and physically fight about their
relationship and mutual infidelity and periodically broke up, but they
continued their sexual relationship off and on for about a year.

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These charges arose out of an October 2011 incident involving
Danielle’s overnight visit to his apartment, involving drinking and consensual
sex, and then the next day of being together drinking, arguing, and eventually,
fighting in which she was badly injured. Additionally, the prosecution
presented evidence about several incidents of Butler’s earlier uncharged
violent criminal conduct toward Danielle, occurring from June through
September 2011. In June 2011, they argued by phone about infidelity and a
sexually transmitted disease. Butler went to Danielle’s home, grabbed her
around the neck, threw her into a wall and door, then choked her and pushed
her to the ground. Danielle’s friend, Samantha P., was present and called 911,
reporting that Butler was threatening to cut Danielle’s throat with his knife.
After less than 10 minutes, Butler handed the knife to Danielle and left. Butler
was arrested and his knife confiscated from Danielle. Butler told police that
he gave the knife to Danielle because he was afraid something would happen.
Butler did not have any explanation for police about the reasons for the June
2011 fight.
After the June 2011 incident, the court issued a criminal protective
order dated July 18, 2011 that prohibited Butler from contacting Danielle.
However, they continued to call, text and see each other occasionally.

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In August 2011, Butler and Danielle were driving when he angrily hit
her in the throat a few times, then stopped, pulled her out of the car, and kicked
her in the face and stomach. She did not go home to her parents until the next
day because her injuries looked so bad. She then called police and a report
was taken.

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In September 2011, Butler pled guilty to dissuading a witness from
reporting a crime and was released on bail, pending sentencing in November
2011. Later in September 2011, Danielle sent him some nude photographs of
herself and a female friend in sexual positions together, but she then asked for
the pictures back. Butler refused and told her he was going to post the
photographs on the Internet. Danielle threatened to file a police report.

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On September 30, 2011, Butler sent text messages to Danielle and
asked her to call him, but she did not do so. She and a friend were driving
away from her home when they saw Butler in his car waiting around, and he
then followed her car, honked his horn and interfered with her driving, trying
to get her car to veer off the road. After a few days, Danielle made a police
report about the incident.
In mid-October, Danielle sent text messages to Butler, and on October
15, 2011, they had a two-hour phone conversation. They started arguing about
their relationship and infidelity, and Butler wanted to come to her house,
which her parents had forbidden. She wanted to keep him away from her
friends and family and agreed to come to his apartment, so she could say
goodbye and have “closure.” Bringing her overnight bag, Danielle drove her
car to Butler’s apartment around 2 a.m. For about two hours, they drank wine,
talked, had consensual conventional sex, then fell asleep.
In the morning, Danielle told Butler she was going to church, but he
discouraged her from doing so, and they spent the day together, eating and
drinking numerous cocktails and beers at a few bars near his apartment, where
they walked. He carried a knife in his pocket, as he usually did. They went to
a sushi bar for dinner, but Danielle because nauseated and went to the
restroom. According to her testimony, when she returned, Butler looked
angrily at her and started asking her about her unfaithfulness, and telling her
she had messed with the wrong person and was not going to have a good night.
When he slapped her face, Danielle did not want to talk to the employees at
the restaurant or make a scene, so they left, walking through a dark alley.

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In the alley, Butler hit and kicked her, knocked her to the ground, and
kicked her some more. When he pulled her up, she could not move her arm.
Butler told her he was going to kill her and punched her in the stomach and
beat her head into the ground. For about an hour, Butler dragged and pulled
Danielle back toward his house, while he continued to hurt her. When they
reached her parked car, Butler shoved her into the passenger seat and got in
the driver’s seat. She did not run away because she was afraid he would catch
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her and hurt her again. He unzipped his pants, showing he had an erection,
and pulled Danielle’s head down to his penis while he told her to orally
copulate him. According to Danielle, he was holding the knife on his lap and
hitting her. She told him to stop, but he continued to threaten her and force his
penis into her mouth while he drove. After they traveled this way for about a
half-mile, Butler parked his car, took his clothes off, pulled Danielle by the
hair into the back seat, and ripped off her clothes. Danielle was on her hand
and knees while he penetrated her anus several times with his penis, which
hurt her. When he finished, he got dressed and started driving toward a park
at the end of the street, saying he was going to kill her there where it was dark
and quiet and she believed him. He parked the car and started to pull her out
by the hair. As they struggled and she screamed, his knife went into her back
about an inch and she started bleeding.
Butler then started walking Danielle toward the park, and they noticed
that a neighbor near the park and others were watching. Butler decided to go
back to the car, Danielle got into the passenger seat, and he closed the door
and walked around to the driver’s seat. At that point, Danielle opened her
door, jumped out and ran toward the neighbor’s house and bolted into it,
crying, “He is going to kill me.” The neighbor, Anthony Lawrence, shut and
locked the door, and had her sit down because she seemed to be
hyperventilating. Next, Danielle ran up the stairs to another room and
collapsed, telling Lawrence and his roommate that Butler had raped, beaten
and threatened her. Lawrence called 911, telling the dispatcher that a young
woman, who was a stranger to him, had run into his house to get away from a
man who had been “dragging” her back to their car, while apparently using
his knife to control her. Before police responded, Butler knocked on the door
and called for Danielle, but they did not answer and he left.
The responding police officer testified he found Danielle on a bed in
Lawrence’s house, in a bruised and hysterical condition. She had a puncture
wound in the center of her back and was bleeding all over the bed. Blood was
found on the sidewalk outside the house. While being taken to a hospital,
Danielle was crying and in pain. She described to the responding officer and
a detective how Butler attacked, threatened and forced her into sex acts. She
also reported she had consumed three beers and a gin and tonic that evening.
She gave a similar account to a deputy district attorney and the investigating
detective the next day, and later at Butler’s preliminary hearing.
At the hospital, Danielle was examined by medical personnel, including
an orthopedic surgeon and a sexual assault response team (SART) nurse.
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Danielle’s injuries included a fractured wrist with significant displacement,
caused by blunt force trauma, and a lacerated liver. She was very “banged up”
and in pain, with bruising and soreness in her face, back and anus, where she
was bleeding. The nurse could not fully examine Danielle’s anal area, due to
the pain, but the nurse saw one laceration there. The nurse’s findings about
injuries were consistent with Danielle’s description of the incident, but the
nurse could not rule out consensual sex as a causative factor.
Butler was arrested a few days later, at his new girlfriend’s home in
Oceanside. His vehicle was found in her garage.
B. Trial Proceedings

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At trial, Lawrence testified he heard a commotion outside his house at
about 7:30 p.m. that day, so he looked outside and saw Butler “shepherding”
Danielle by the arm back to a white car. She looked like she had been crying.
After Danielle got in the car, Lawrence saw her jump out and run towards his
house, screaming that her boyfriend was going to kill her, and saying she
couldn’t move her arm. He didn’t think she seemed intoxicated.
The prosecution presented evidence about several incidents of Butler’s
earlier uncharged criminal violent conduct toward his ex-wife Jessica Butler,
who was then also in the Marine Corps. They were married in January 2007
and had a violent argument in October 2007. When Butler slapped, pushed,
and choked his then-wife, she lost consciousness. As a result, Butler pleaded
guilty to a crime of domestic violence, and a criminal protective order
prohibited him from contacting her. However, they continued to have a
relationship.
Another violent incident took place between them in May 2008, when
he threatened and chased Jessica, then seven months pregnant, and she jumped
off a second-story balcony to get away from him. He ran after her and punched
or kicked her, knocking her down. Butler served time in jail and in 2009, was
dishonorably discharged from the Marine Corps for domestic violence.
At trial, the jury heard testimony from a domestic violence expert who
explained the usual dynamics of such a relationship, such as why an abused
woman might continue to return to her abuser. [Footnote: Rebuttal evidence
was presented about an attack by Butler on a couple in November 2008, but it
need not be summarized here.]

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Butler testified in his defense, first explaining that in the Marines, he
had received special training in martial arts and was a black belt instructor.
He was a weapons enthusiast and usually carried a knife. During their
relationship, he gave a knife to Danielle and taught her how to use it.
However, he did not get his own knife back after he gave it to Danielle after
the June 2011 incident.

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Butler acknowledged that both he and Danielle disrespected each other
when they cheated on each other, during their relationship of one and a half
years. By June 2011, when they had the fight at her home, they had been
together for about a year and she was angry that he had relationships with
other women. That day, she told him she was unfaithful to him, using a racial
slur. Butler said he pushed her against the wall, she apologized, and they both
calmed down. He did not open his knife that day.
During the incident in August 2011, he said Danielle got upset when he
lost the keys to a car that she was driving, but they did not fight about it. When
he was arrested a few days later for assaulting Danielle, he denied it. When
Danielle sent him nude photographs of herself and a female friend in
September, Butler refused to give them back. He was upset about the August
arrest and claimed that Danielle was threatening to lie to the police and file a
false police report. He testified that he did not follow Danielle in his car on
September 30. By then, he had a new girlfriend and had moved on from
Danielle and past relationships.

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Butler testified that Danielle texted him “out of the blue” on October
13. Although he was already in a new relationship and had decided to move
on, he still had feelings for Danielle. Two days later, he and Danielle talked
on the phone for about two hours. When he told Danielle about his new
girlfriend, who was out of town, Danielle got upset that he had replaced her
and she came to his apartment around 2:00 or 3:00 a.m. They got along well
and had consensual sex. Danielle told him there was nobody like him among
other men, and she wanted to “wait” for him until after his upcoming sentence
was over (for dissuading a witness).
The next day they were happy to be together and went to a restaurant
and several bars, and both of them had a number of drinks (beer and gin and
tonics). They were both drunk but able to talk about and plan on having anal
sex at the park, which they had done before a few times. At the restaurant
where they went to eat dinner, they discussed infidelity, but without arguing
about it. Butler understood that he and Danielle had cheated on each other,
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but testified that this did not upset him, because that was the type of women
that he dated, so he wasn’t surprised.
Butler testified that when he and Danielle left the restaurant, they
strolled back toward his apartment, taking in the night air, although they
stumbled a bit because they were drunk. They were still planning to drive
together in Danielle’s car to the nearby park to have sex, because Butler’s
roommate might be at home and he did not approve of their relationship.
When they got to the car, Danielle voluntarily performed oral sex on him.
They found that the park was barricaded so they parked the car nearby, and
Danielle went into the back seat and undressed. They continued the oral
copulation and then they moved around to have anal sex, while she
encouraged him. Butler testified that throughout the episode, he did not beat,
punch, kick or push Danielle down, and he did not have his knife with him.
Afterwards, they got dressed and moved around in the car. Danielle
didn’t want to go home, even though she knew Butler’s girlfriend was coming
back to him the next day. Butler and Danielle were both upset and frustrated
about the way the day was going, and they argued about the new girlfriend.
Butler heard a click, which he recognized as the sound of Danielle’s knife
opening, and she lunged at him with the knife. He was surprised and afraid
because he had taught Danielle where to stab a person to kill him, and he
thought she would do so. As he had been trained to do, he lunged at Danielle
to disarm her, reaching for her wrist and hand and using his head and weight
to pin her into the back seat. He bent and twisted her wrist, probably breaking
it, then hit her in the chest a few times as “softening blows,” for distraction.
When he pulled Danielle’s arm toward her body and twisted her wrist, he felt
the blade “slide into her back” and saw that she arched up her back, causing
the knife to drop out, so he put it in his pocket.
They then got out of the car and walked toward the park. Butler could
see Danielle’s arm was hurt, but he did not seek medical help, since he knew
he was violating the restraining order, they had just had a fight, and Danielle
had a stab wound in her back. They were both stumbling and he held Danielle
by the arm. When Butler noticed a neighbor was watching them, he was afraid
that the noise of the fight had been heard from the car, so he decided to get
away from the car. Danielle then slapped him and he pushed her to the ground.
When he bent down to pick her up, she kicked him in the mouth. He kicked
her about six more times, then picked her up, told her to stop because she was
being unreasonable, and they went back toward the car.

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Once Danielle ran away to the neighbor’s house, saying that Butler was
going to kill her, Butler decided he needed to “fix this,” because it did not
“look good.” When he knocked on Lawrence’s door, no one answered, so he
walked back to his house. He then drove his truck to Oceanside to visit his
girlfriend, where he was arrested a few days later.
In his testimony, Butler denied forcing Danielle to orally copulate him,
and denied that any forcible sodomy took place, as she had agreed to all their
sexual conduct. He did not intend to stab her in the back. Discussing infidelity
with either his ex-wife or Danielle did not upset him.
The trial court took judicial notice of the protective order issued on July
18, 2011, prohibiting Butler from all contact with Danielle and requiring that
he stay 100 yards away, and admitted the document into evidence. Butler’s
felony conviction of September 8, 2011 for dissuading a witness from
reporting a crime was also judicially noticed and admitted into evidence. (§
136.1, subd. (b)(1).) The document showed that Butler was out on bail,
awaiting sentencing, at the time of the October 11 incidents.

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The court held a series of jury instruction discussions, and Butler’s
counsel explained he was in a “delicate position” about the problem of
proposing lesser included offense instructions, due to his concerns the jury
might then enter into some kind of compromise. The prosecutor withdrew that
proposed instruction. After doing some more research over the weekend, the
court decided that no instructions on the lesser included offense of attempted
involuntary manslaughter would be appropriate, because no evidence
supported them.

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Before the case was submitted to the jury, one of the juror notified the
court he had received a Facebook advertisement about a criminal background
check business that had a mug shot photo that looked somewhat like Butler.
The court questioned all of the jurors about it, then denied Butler’s request for
a mistrial. Later, a new trial request on the same ground, and others, was
denied.
During deliberations, the jury sent out notes requesting that several
portions of the testimony be read back, but changed its request to only hear
Butler’s account. Ultimately, the jury convicted Butler on all four counts, but
did not find true that he had used a knife during the kidnapping or sex offenses,
nor did he inflict great bodily injury, except in the forcible sodomy and the
attempted murder.
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(Dkt. No. 13-14, Lodgment No. 7, People v. Butler, No. D063890, slip op. at 5-15.)

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DISCUSSION

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A. Standard of Review of Magistrate Judge’s Report and Recommendation
The district court’s role in reviewing a Magistrate Judge’s report and
recommendation is set forth in 28 U.S.C. § 636(b)(1). The district court “may accept,
reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1); see also Federal Rule of Civil Procedure 72(b);
United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). In the absence of a timely
objection from Petitioner, the Court need “only satisfy itself that there is no clear error on
the face of the record.” Fed. R. Civ. P. 72(b) (advisory committee notes). When no
objections are filed, a district court may assume the correctness of the magistrate judge’s
findings of fact and decide the motion on the applicable law. Campbell v. U.S. Dist.
Court, 501 F.2d 196, 206 (9th Cir. 1974). Here, Petitioner has not filed an objection to the
Report. The Court will therefore assume the correctness of the magistrate judge’s
findings of fact and decide the motion on the applicable law. See id.
B. Legal Standard
A petition for federal habeas relief under 28 U.S.C. § 2254 can only be granted
with respect to any claim that has been adjudicated on the merits in state court
proceedings if the Court determines that the state court decided the petitioner’s case in a
manner that was “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States,” or
“based on an unreasonable determination of the facts in light of the evidence presented in
the state court proceeding.” 28 U.S.C. § 2254(d); Williams v. Taylor 529 U.S. 362, 403,
412-13 (2000). “Federal habeas courts making the ‘unreasonable application’ inquiry
should ask whether the state court’s application of clearly established federal law was
objectively unreasonable. . . . [rather than] transform the inquiry into a subjective one.”
12
3:16-cv-00039-GPC-MDD

1

Williams, 529 U.S. at 409-10. Even if Petitioner can satisfy § 2254(d), or demonstrate

2

that it does not apply, Petitioner must still show that a federal constitutional violation

3

occurred, and that any such constitutional error had a “substantial and injurious effect.”

4

Fry v. Pliler, 551 U.S. 112, 121-22 (2007); Arizona v. Fulminante, 499 U.S. 279, 306

5

(1991) (stating “most constitutional errors can be harmless.”)

6

When the California Supreme Court summarily denies a petition for review

7

without citation to authority, claims raised by a petitioner on appeal are analyzed under

8

the California Court of Appeal’s decision as the “last reasoned decision” on the merits of

9

petitioner’s case. Ylst v. Nunnemaker, 501 U.S. 797, 803-06 (1991); Medina v.

10

Hornung, 386 F.3d 872, 877 (9th Cir. 2004). When a federal habeas court is faced with

11

reviewing a state court denial for which there is no reasoned decision, the deferential

12

standard under § 2254(d) cannot be applied because there is “nothing to which we can

13

defer.” Luna v. Cambra, 306 F.3d 954, 960 (9th Cir. 2002). “Where a state court's

14

decision is unaccompanied by an explanation, the habeas petitioner's burden still must be

15

met by showing there was no reasonable basis for the state court to deny relief.”

16

Harrington v. Richter, 562 U.S. 86, 98 (2011). “‘[W]hen the state court does not supply

17

reasoning for its decision,’ we are instructed to engage in an ‘independent review of the

18

record’ and ascertain whether the state court's decision was ‘objectively unreasonable.’”

19

Walker v. Martel, 709 F.3d 925, 939 (9th Cir. 2013) (quoting Delgado v. Lewis, 223 F.3d

20

976, 982 (9th Cir. 2000)); Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003)

21

(“Independent review of the record is not de novo review of the constitutional issue, but

22

rather, the only method by which we can determine whether a silent state court decision

23

is objectively reasonable.”).

24

C. Analysis

25

1. Failure of trial court to sua sponte instruct the jury (Claims 1-3)

26

Petitioner claims that his federal constitutional rights were violated by the failure

27

of the trial court to sua sponte instruct the jury on attempted voluntary manslaughter as a

28

lesser included offense of attempted murder (Claim 1), on his reasonable but mistaken
13
3:16-cv-00039-GPC-MDD

1

belief the victim consented (Claim 2), and on the defense of accident (Claim 3). (Dkt. No.

2

1, Pet.)

3

California law provides that in criminal cases, “[T]he trial court must instruct [the

4

jury] on the general principles of law relevant to the issues raised by the evidence,” even

5

in the absence of such instructional requests. People v. Breverman, 19 Cal. 4th 142, 153

6

(1998) (internal citations omitted). The general principles of law that must be relayed to

7

the jury are those that are “closely and openly connected with the facts before the court,

8

and which are necessary for the jury’s understanding of the case.” Id. However, a trial

9

court’s duty to instruct the jury sua sponte on theories of defense arises, “only if it

10

appears that the defendant is relying on such a defense, or if there is substantial evidence

11

supportive of such a defense and the defense is not inconsistent with the defendant’s

12

theory of the case.” Id. at 157 (emphasis in original).

13

In the context of federal habeas petitions, a challenge to jury instructions does not

14

generally state a federal constitutional claim. Estelle v. McGuire, 502 U.S. 62, 71-72

15

(1991) (stating “the fact that the instruction was allegedly incorrect under state law is not

16

a basis for habeas relief.”); see also, Marshall v. Lonberger, 459 U.S. 422, 438, n. 6

17

(1983) (“The Due Process Clause does not permit the federal courts to engage in a finely

18

tuned review of the wisdom of state evidentiary rules.”). In order to warrant federal

19

habeas relief, challenges to jury instructions must establish that the jury instructions were

20

not merely “undesirable, erroneous, or even universally condemned, but must violate

21

some due process right guaranteed by the Fourteenth Amendment.” Prantil v. California,

22

843 F.2d 314, 317 (9th Cir. 1988) (quoting Cupp v. Naughten, 414 U.S. 141, 146 (1973))

23

(internal quotations omitted). To establish a federal due process violation for failure to

24

give jury instructions, Petitioner must demonstrate that the omission “so infected the

25

entire trial that the resulting conviction violates due process” and not whether “the

26

instruction is undesirable, erroneous, or even ‘universally condemned.’” Henderson v.

27

Kibbe, 431 U.S. 145, 154 (1977) (citing Cupp, 414 U.S. at 147).

28

When a challenge to jury instructions is based on the refusal or failure to sua
14
3:16-cv-00039-GPC-MDD

1

sponte instruct the jury, the burden on the petitioner is “especially heavy” because “[a]n

2

omission, or an incomplete instruction is less likely to be prejudicial than a misstatement

3

of the law.” See id. at 155. Furthermore, “it is the rare case in which an improper

4

instruction will justify reversal of a criminal conviction when no objection has been made

5

in the trial court.” Id. at 154; see also Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir.

6

1997).

7

Even if a petitioner meets the heavy burden of proving a trial court’s failure to

8

instruct the jury violated due process, habeas relief is not available unless the petitioner

9

can prove such an error had a “substantial and injurious effect or influence in determining

10

the jury’s verdict,” and resulted in “actual prejudice.” Brecht v. Abrahamson, 507 U.S.

11

619, 637 (1993) (quoting United States v. Lane, 474 U.S. 438, 449 (1986)); Kotteakos v.

12

United States, 328 U.S. 750, 776 (1946)) (internal quotations omitted); see also

13

California v. Roy, 519 U.S. 2, 5 (1996).

14

a. Claim 1—Lesser included offense of voluntary manslaughter

15

Petitioner contends in Claim 1 that his federal constitutional right to due process

16

was violated by the failure of the trial court to sua sponte instruct the jury on attempted

17

voluntary manslaughter as a lesser included offense of attempted murder. (Dkt. No. 1,

18

Pet. at 16-21.) Petitioner alleges, “The trial record is replete with evidence that [he] acted

19

in the heat of passion and that he harbored an actual but unreasonable belief in [the need

20

to] defend[] himself,” and the trial court therefore erred in finding there was insufficient

21

evidence of attempted voluntary manslaughter to support the instruction. (Id. at 17.)

22

Respondent contends that the claim does not raise a federal question, and, in the

23

alternative, that the trial court’s resolution of this claim was neither contrary to, nor an

24

unreasonable application of clearly established Supreme Court law. (Dkt. No. 12, Answer

25

at 22-37.)

26

In the Ninth Circuit, the failure to give lesser-included offense instructions in non-

27

capital cases presents no federal question. Solis v. Garcia, 219 F.3d 922, 929 (9th Cir.

28

2000) (“[T]he failure of a state court to instruct on a lesser included offense in a non15
3:16-cv-00039-GPC-MDD

1

capital case fails to present a federal constitutional question and will not be considered in

2

a federal habeas corpus proceeding.”). In contrast, California law provides that a trial

3

court must “instruct, sua sponte, on all theories of a lesser included offense which find

4

substantial support in the evidence. On the other hand, the court is not obligated to

5

instruct on theories that have no such evidentiary support.” Breverman, 19 Cal. 4th at

6

162. Notwithstanding Solis, Petitioner has an especially heavy burden to demonstrate the

7

omission of the lesser included offense instructions infected the entire trial such that it

8

violated his due process. Solis, 219 F.3d at 929; see Kibbe, 431 U.S. at 154.

9

Petitioner presented this claim in the petition for review that he filed with the

10

California Supreme Court. (Dkt. No. 13-15, Lodgment No. 8 at 4-12.) The California

11

Supreme Court denied the petition without citation to authority. (Dkt. No. 13-16,

12

Lodgment No. 9.) Accordingly, this Court must “look through” to the opinion of the

13

California Court of Appeal as the basis for its analysis. Ylst, 501 U.S. at 803-06.

14

The California Court of Appeal ruled that the trial court did not abuse its discretion

15

by failing to instruct the jury on the lesser included offense of attempted voluntary

16

manslaughter and affirmed the Petitioner’s convictions on direct appeal. (Dkt. No. 13-14,

17

Lodgment No. 7 at 15-23.) The appellate court, citing Breverman, 19 Cal. 4th at 162,

18

correctly noted the trial court is required to instruct sua sponte on all theories of a lesser

19

included offense which find substantial support in the evidence. (Id.) However, the

20

appellate court then examined the record and found a lack of substantial support for the

21

instruction of voluntary manslaughter. (Id.) The appellate court determined that there was

22

not enough evidence of actual provocation by Danielle to instruct the jury on a heat of

23

passion defense, and the record lacked substantial evidentiary support for an

24

unreasonable self-defense theory of involuntary manslaughter. (Id. at 19, 22.)

25

Furthermore, the appellate court noted that Butler’s counsel did not object during jury

26

instruction discussions when the prosecutor withdrew the instruction on the lesser

27

included offenses of attempted voluntary manslaughter nor when the trial court stated it

28

would not instruct on attempted voluntary manslaughter because there was no evidence in
16
3:16-cv-00039-GPC-MDD

1

support of that charge. (Id. at 20, 23.) The appellate court determined that during the trial,

2

Butler pursued a self-defense theory of the case and no sua sponte duty to instruct the

3

jury of the lesser included offense of attempted voluntary manslaughter arose in this

4

respect. (Id. at 23.)

5

The Magistrate Judge concluded in his Report that Petitioner is not entitled to

6

federal habeas relief based on the state court’s denial of Claim 1 because no federal due

7

process violation arose from the failure to give an instruction on attempted voluntary

8

manslaughter. (Dkt. No. 21, Report at 18-21.) The Report agreed with the appellate court

9

determination that the trial record lacked sufficient evidence Petitioner acted from a heat

10

of passion because he testified that after leaving the restaurant he and the victim were

11

“strolling, enjoying the night air, talking,” and that he later kept his head and relied on his

12

military training while trying to defend himself and disarm the knife from the victim. (Id.

13

at 19; Dkt. No. 13-5, Lodgment No. 1, Reporter’s Tr. [“RT”] at 1085, 1096-99.) The

14

Report further noted that any instruction on the lesser included offense of voluntary

15

manslaughter would have conflicted with Petitioner’s defense theory of actual self-

16

defense. (Dkt. No. 21, Report at 21.) It concluded that the trial court’s failure to sua

17

sponte instruct the jury on the lesser included defense of voluntary manslaughter was

18

neither contrary to, nor an unreasonable application of, clearly established federal law as

19

interpreted by the Supreme Court. (Id.)

20

This Court determines that under Solis there is no federal habeas claim for a state

21

court failing to instruct, sua sponte, on lesser included offenses in noncapital cases such

22

as Petitioner’s. See Solis, 219 F.3d at 929. Neither the Supreme Court nor the Ninth

23

Circuit has held that a non-capital criminal defendant has a constitutional right to a lesser

24

included offense instruction. See Windham v. Merkle, 163 F.3d 1092, 1106 (9th Cir.

25

1998) (“Under the law of [the Ninth] circuit, the failure of a state trial court to instruct on

26

lesser included offenses in a non-capital case does not present a federal question.”); see

27

also Keeble v. United States, 412 U.S. 205, 213 (1973) (in a direct criminal appeal by a

28

federal defendant in a non-capital case, the Court stated “we have never explicitly held
17
3:16-cv-00039-GPC-MDD

1

that the Due Process clause of the Fifth Amendment guarantees the right of a defendant

2

to have the jury instructed on a lesser included offense” but declined to reach the question

3

in that case). Therefore, the state court decision cannot be said to be contrary to, or an

4

unreasonable application of, federal law as decided by the Supreme Court. See Carey v.

5

Musladin, 549 U.S. 70, 77 (2006) (where Supreme Court precedent gives no clear answer

6

to question presented, “it cannot be said that the state court ‘unreasonab[ly] appli[ed]

7

clearly established Federal law.’”) (citing 28 U.S.C. § 2254(d)(1)).

8
9

Additionally, Butler not only did not request an instruction on the lesser included
offense, but his counsel did not object to the trial court’s decision to not instruct on

10

attempted voluntary manslaughter, noting that the lesser included offense instruction may

11

encourage the jury to enter into some kind of compromise. (Dkt. No. 13-5, Lodgment No.

12

1, RT at 932.) See Bashor v. Risley, 730 F.2d 1228, 1240 (9th Cir. 1984) (stating that

13

even assuming a failure to give a lesser included offense instructions could violate a

14

defendant’s constitutional rights, no violation occurred when defendant never requested

15

such instructions).

16

Furthermore, besides not meeting his heavy burden to show a federal due process

17

violation occurred, even if there had been a violation, Petitioner has not shown that the

18

failure to instruct the jury on the lesser included offense had a substantial and injurious

19

effect or influence on the jury’s verdict. See Brecht, 507 U.S. at 637; Kibbe, 431 U.S. at

20

154. The jury found Petitioner intended to kill the victim, and there was no evidence from

21

which the jury could have found Petitioner intentionally stabbed the victim in the heat of

22

passion. (Dkt. No. 13-9, Lodgment No. 2, CT at 379; see also Dkt. No. 13-14, Lodgment

23

No. 7 at 19; Dkt. No. 21, Report at 19.) Not only was there insufficient evidence to

24

support a voluntary manslaughter defense, such defense theory would have conflicted

25

with both the victim’s and Petitioner’s testimony, and the failure of the trial court to sua

26

sponte instruct the jury on the lesser included offense of voluntary manslaughter did not

27

substantially influence the jury verdict or cause “actual prejudice” to Petitioner. (See Dkt.

28

No. 13-2, Lodgment No. 1, RT at 346-62 [victim’s testimony that Petitioner said he was
18
3:16-cv-00039-GPC-MDD

1

going to kill her and stabbed her when she tried to escape]; Dkt. No. 13-5, Lodgment No.

2

1, RT at 1096-1101 [Petitioner’s testimony that he used special training techniques to

3

disarm victim and attempted to take control of the situation].) See also Brecht, 507 U.S.

4

at 637; Kotteakos, 328 U.S. at 776.

5

For the foregoing reasons, this Court DENIES Claim 1 concerning the lesser

6

included offense of voluntary manslaughter because Petitioner failed to present a

7

colorable federal claim, has not demonstrated a federal due process violation, and even if

8

there was a due process violation, any error was harmless. The state court’s adjudication

9

of the claim was therefore neither contrary to, nor an unreasonable application of, clearly

10
11
12

established federal law. See 28 U.S.C. § 2254(d).
b. Claim 2—Reasonable but mistaken belief of consent
Petitioner alleges in Claim 2 that his federal constitutional right to due process was

13

violated by the failure of the trial court to sua sponte instruct the jury on the defense of

14

mistaken belief in consent. (Dkt. No. 1, Pet. at 22.) He points to evidence which he

15

argues supports a finding that he reasonably, although perhaps mistakenly, believed the

16

victim consented to the sex acts, including (a) his testimony that the sex acts were

17

consensual; (b) the victim recently re-initiated their relationship by sending nude

18

photographs of herself; (c) their history of consensual sex, including earlier that day; and

19

(d) the fact that the jury found not true the allegations that he used a knife during the sex

20

offenses and inflicted great bodily injury during the forcible oral copulation count,

21

despite the victim’s testimony that he did, indicating that they did not believe at least

22

some of her testimony. (Id. at 22-25.) Respondent answers that this claim does not

23

present a federal question because the failure to instruct did not rise to the level of a

24

federal due process violation, and, in the alternative, the state court correctly found there

25

was insufficient evidence to support the instruction, and the denial of the claim by the

26

state court on that basis was therefore neither contrary to, nor involved an unreasonable

27

application of, clearly established federal law. (Dkt. No. 12, Answer at 37-42.)

28

As with the previous claim, Petitioner has a “heavy burden” of showing that the
19
3:16-cv-00039-GPC-MDD

1

failure to instruct the jury on his reasonable but mistaken belief in the victim’s consent

2

“so infected the entire trial that the resulting conviction violates due process.” Kibbe, 431

3

U.S. at 154-55; Cupp, 414 U.S. at 147. In order for a California trial court to give sua

4

sponte jury instructions on a defense, the instruction must be supported by substantial

5

evidence and cannot be inconsistent with the defendant’s theory of the case. Breverman,

6

19 Cal. 4th at 157. Substantial evidence for the purpose of jury instructions means

7

evidence sufficient enough to deserve consideration by the jury, not whenever “any

8

evidence is presented, no matter how weak.” Id. at 162 (emphasis in original).

9

In order for a jury to be instructed on a mistaken belief of consent defense in

10

California, the trial court must determine “whether there is substantial evidence that the

11

defendant honestly and reasonably, but mistakenly, believed that the victim consented to

12

sexual intercourse.” Id. This requires there be substantial evidence of both a subjective

13

belief the victim consented, as well as an objective showing that the defendant’s mistake

14

regarding the consent was reasonable under the circumstances. Id. at 360-361.

15

In the last reasoned state court opinion, the Court of Appeals determined that

16

Petitioner’s proposed defense of mistaken consent is unsupported by any substantial

17

evidence in the record. (Dkt. No. 13-14, Lodgment No. 7 at 27.) The appellate court

18

concluded that the trial court had no justification for giving a sua sponte instruction on a

19

reasonable but mistaken belief of consent to the sexual conduct because Petitioner did not

20

carry his burden to present substantial evidence to support that theory of defense. (Id.)

21

The appellate court, citing People v. Williams, 4 Cal. 4th 354, 360-61 (1992), correctly

22

explained that this defense requires substantial evidence on both the subjective and

23

objective components of the defense. (Id. at 24-25.) The appellate court noted that even if

24

Petitioner subjectively but mistakenly believed the victim consented based on the history

25

of their relationship, there was insufficient evidence in the record to show that this

26

mistaken belief of consent was objectively reasonable based on the circumstances of how

27

they got into the car and where the conduct occurred. (Id. at 27.)

28

The Magistrate Judge’s Report concluded that the trial court’s failure to sua sponte
20
3:16-cv-00039-GPC-MDD

1

instruct the jury on the reasonable but mistaken belief of consent did not violate

2

Petitioner’s right to due process. (Dkt. No. 21, Report at 28.) The Report found that the

3

adjudication of Claim 2 by the state court was objectively reasonable in finding

4

insufficient evidence to support the objective component of the mistaken consent defense

5

based on the manner in which Petitioner and the victim left the restaurant and arrived at

6

the car, and in particular, the severity of the victim’s injuries. (Id. at 26-27.)

7

Because Petitioner filed no objection to the Magistrate Judge’s Report, this Court

8

assumes the correctness of the Report’s finding of fact, which agreed with the state

9

appellate court decision, that there is insufficient evidence in the record to show

10

Petitioner could have objectively but mistakenly believed the victim consented. (Dkt. No.

11

21, Report at 25.) See Campbell, 501 F.2d at 206. Furthermore, this Court is “bound to

12

presume that state courts know and follow the law, and . . . that state-court decisions be

13

given the benefit of the doubt.” Byrd v. Lewis, 566 F.3d 855, 861-62 (9th Cir. 2009).

14

This deference “applies with even greater force when a state court is analyzing a jury

15

instruction developed under state law.” Id. (citing Waddington v. Sarausad, 555 U.S. 179,

16

193-97 (2009).

17

Based on this Court’s deference to the state court and assumption of the Report’s

18

finding of fact, this Court rejects Petitioner’s allegation that the trial court’s failure to sua

19

sponte instruct the jury on the defense of mistaken belief of consent, “so infected the

20

entire trial that the resulting conviction violates due process.” Kibbe, 431 U.S. at 154.

21

The jury was properly instructed on the prosecution’s burden to prove beyond reasonable

22

doubt the victim did not consent to the sex acts, and defense counsel for Petitioner argued

23

that the sex acts were actually and reasonably consensual. (Dkt. No. 13-6, Lodgment No.

24

1, RT at 1231-32, 1311-12.) Petitioner did not argue in his defense that he misinterpreted

25

the victim’s consent to the sex acts, rather he asserted the sex acts were in fact consensual

26

and the victim’s account of the events were outright lies. (Id. at 1310-14.) In Williams, a

27

factually similar case where the victim testified she did not consent and was violently

28

prevented from leaving, but the defendant testified that the victim initiated and actively
21
3:16-cv-00039-GPC-MDD

1

pursued sexual intercourse, the California Supreme Court noted, “[W]holly divergent

2

accounts create no middle ground from which [the defendant] could argue he reasonably

3

misinterpreted [the victim’s] conduct [and consent].” Williams, 4 Cal. 4th at 362.

4

Likewise in the present case, although Butler may have subjectively believed the victim

5

consented, the disparity between the victim’s testimony and Butler’s account of events

6

precludes any objectively reasonable misinterpretation of consent for purposes of a

7

mistaken consent defense. Petitioner has failed to show there was sufficient evidence in

8

the record of a mistaken belief of consent defense, such that it triggered a sua sponte duty

9

to instruct by the trial court.

10

Because there was insufficient evidence for the trial court to sua sponte instruct the

11

jury on a reasonable but mistaken belief the victim consented to the acts, and because the

12

instruction was not necessary for his defense, and in fact conflicted with Petitioner’s

13

testimony that the victim initiated the sex, (Dkt No. 13-5, Lodgment No. 1, RT at 1088

14

[“She undoes my belt. She undoes my zipper. . . . And she starts performing oral sex on

15

me]), Petitioner fails to meet the heavy burden of showing a federal due process violation

16

arising from the failure to give the jury instruction. See Kibbe, 431 at 155. Even if

17

Petitioner could meet such a heavy burden, there is no evidence that the failure of the trial

18

court to give a sua sponte instruction on the mistaken belief of consent had a “substantial

19

and injurious effect” on the jury verdict and thus, any error is harmless. See Brecht, 507

20

U.S. at 637. The jury was presented with two contrasting versions of the events that took

21

place that night, and ultimately chose to believe the victim’s account. Although Petitioner

22

argues that the jury did not entirely believe the victim’s testimony that he brandished a

23

knife during the sex acts because the jury found those allegations not true (Pet. at 25), the

24

jury could have reasonably found she was forced to submit to the sex acts regardless of

25

whether or not he was brandishing a knife. The jury could have also determined that

26

those allegations had not been proven beyond a reasonable doubt, without finding that the

27

victim testified untruthfully. Therefore, the Court finds that the failure to instruct the jury

28

in that manner did not have a substantial and injurious effect on the jury verdict and any
22
3:16-cv-00039-GPC-MDD

1
2

error is harmless. See Brecht, 507 U.S. at 637.
For the foregoing reasons, this Court DENIES Claim 2 concerning the reasonable

3

but mistaken belief of consent because Petitioner has not demonstrated a federal due

4

process violation, and even if he did, any error would be harmless. The state court’s

5

adjudication of the claim was therefore neither contrary to, nor an unreasonable

6

application of, clearly established federal law. See 28 U.S.C. § 2254(d).

7
8
9

c. Claim 3—Defense of accident
Petitioner alleges in Claim 3 that his federal constitutional right to due process was
violated by the trial court’s failure to sua sponte instruct the jury on the defense of

10

accident. (Dkt. No. 1, Pet. at 28-31.) He contends that the victim’s knife wound was

11

caused by a struggle over the knife, and that there was a factual dispute as to whether the

12

wound was accidental or intentional. (Id.) Respondent answers that this claim is not

13

cognizable on federal habeas grounds because it presents an issue of state law only. (Dkt.

14

No. 12, Answer at 42-43.) Furthermore, Respondent argues that should the claim be read

15

as presenting a federal issue, it is unexhausted because no state court has addressed the

16

claim and is therefore procedurally defaulted. (Id.) Notwithstanding the failure to exhaust

17

the claim, Respondent argues that the claim should be denied because there is insufficient

18

evidence to support the instruction and any federal error is harmless. (Id. at 43-45.)

19

Petitioner later agreed that the claim is unexhausted and procedurally defaulted and

20

sought to withdraw the claim from his Petition. (Dkt. No. 20, Traverse at 2, 22.)

21

Claim 3 was presented to the California Supreme Court in August 2014, in the

22

petition for review. (Dkt. No. 13-15, Lodgment No. 8 at 22-25.) In that petition,

23

Petitioner’s appointed appellate counsel argued as to Claim 3: “Because of the Court of

24

Appeal’s failure to address this contention, and in light of other issues passed over by the

25

court, appellant requests remand and rehearing so the Court of Appeal can address all of

26

his contentions and grant the requested relief.” (Id. at 26.) That same counsel presented

27

Petitioner’s Claim 3 to the appellate court on October 15, 2013, in the opening brief on

28

direct appeal. (Dkt. No. 13-10, Lodgment No. 3 at 40-44.) However, on November 1,
23
3:16-cv-00039-GPC-MDD

1

2013, prior to the People filing a responsive brief, counsel sent a letter to the appellate

2

court stating: “It has been brought to my attention that the argument raised in Claim III of

3

the appellant’s opening brief has been resolved by the California Supreme Court and

4

there is no longer a sua sponte duty for the court to instruct on the defense of accident.

5

Please strike that argument at pages 40 to 44 of the brief. I apologize for the error and any

6

inconvenience to the court.” (Dkt. No. 13-11, Lodgment No. 4 at 1.) Petitioner’s

7

appellate counsel was presumably referring to People v. Anderson, which holds, “[A]

8

trial court need not instruct on the defense of accident on its own initiative, so long as the

9

jury received complete and accurate instructions on the requisite mental element of the

10

charged offense.” Anderson, 51 Cal. 4th 989, 1001 (2011). It is not clear from the record

11

why counsel raised the claim in the state supreme court after withdrawing the claim from

12

the appellate court.

13

In order to exhaust state judicial remedies for purposes of federal habeas relief

14

under 28 U.S.C. § 2254, a state prisoner must present the state’s highest court with a fair

15

opportunity to rule on the merits of every issue raised in their federal habeas petition.

16

Granberry v. Greer, 481 U.S. 129, 133-34 (1987); Duncan v. Henry, 513 U.S. 364, 365-

17

66 (1995). A claim is considered fairly presented to a state court if done so in a manner

18

which allows that court to have “the first opportunity to hear the claim sought to be

19

vindicated in a federal habeas proceeding.” Picard v. Connor, 404 U.S. 270, 275-76

20

(1971). However, a claim fails to be fairly presented to a state court if it is presented in a

21

manner that precludes consideration by the state court. Castille v. Peoples, 489 U.S. 346,

22

351 (1989). Furthermore, federal courts have discretion to deny a habeas application on

23

the merits notwithstanding a petitioner’s failure to exhaust state remedies. See 28 U.S.C.

24

§ 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits,

25

notwithstanding the failure of the applicant to exhaust the remedies available in the courts

26

of the State.”)

27
28

Although Petitioner’s appointed appellate counsel withdrew the claim from the
appellate court brief (Dkt. No. 13-11, Lodgment No. 4), counsel included it in the
24
3:16-cv-00039-GPC-MDD

1

California Supreme Court petition for review. (Dkt. No. 13-15, Lodgment No. 8 at 22-

2

25.) The California Supreme Court summarily denied the petition on all claims without

3

citation to authority. (Dkt. No. 13-16, Lodgment No. 9.) The silent denial of a claim by a

4

state supreme court is presumed to be an adjudication on the merits of the claim. See

5

Richter, 562 U.S. at 99 (“When a federal claim has been presented to a state court and the

6

state court has denied relief, it may be presumed that the state court adjudicated the claim

7

on the merits in the absence of any indication or state-law procedural principles to the

8

contrary.”) Because Claim 3 was included in the California Supreme Court petition for

9

review, and that court’s denial of the petition is presumed to be adjudicated on the merits,

10

Claim 3 was fairly presented for consideration by a state court and the exhaustion

11

requirement for federal habeas relief under 28 U.S.C. § 2254(d) is therefore satisfied.

12

Accordingly, this Court rejects Respondent’s contention that the claim is unexhausted

13

and procedurally defaulted. Furthermore, this Court rejects Petitioner’s request to

14

withdraw the claim from his Petition, as his request is seemingly based on the

15

unsupported and erroneous representation in Respondent’s Answer that the claim is

16

unexhausted. See Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001) (federal courts

17

are required to liberally construe pro se prisoner habeas petitions, especially with regard

18

to the determination as to which claims are presented).

19

Because the claim was presented only in the petition for writ of habeas corpus to

20

the California Supreme Court, and the state supreme court did not articulate the reasons

21

for denying the claim, this Court must conduct an independent review of the record to

22

determine whether the denial is contrary to, or an unreasonable application of, clearly

23

established Supreme Court law. See Richter, 562 U.S. at 99, 102 (“[The Court] must

24

determine what arguments or theories . . . could have supported the state court’s decision;

25

and then it must ask whether it is possible fairminded jurists could disagree that those

26

arguments or theories are inconsistent with the holding in a prior decision of [the

27

Supreme Court]”); Himes, 336 F.3d at 853. As with Petitioner’s other claims regarding

28

sua sponte jury instructions, Petitioner has a “heavy burden” of showing that the failure
25
3:16-cv-00039-GPC-MDD

1

to instruct the jury on the defense of accident “so infected the entire trial that the resulting

2

conviction violates due process.” Kibbe, 431 U.S. at 154-55; Cupp, 414 U.S. at 147.

3

The Magistrate Judge’s Report concluded that Petitioner demonstrated no federal

4

due process violation and the trial court’s failure to sua sponte instruct the jury on the

5

defense of accident was objectively reasonable. (Dkt. No. 21, Report at 32.) The jury was

6

instructed that in order to convict Petitioner of attempted murder the prosecution was

7

required to prove beyond a reasonable doubt that he had “the intent to kill another

8

person.” (Dkt. No. 13-6, Lodgment No. 1, RT at 1224.) By convicting Petitioner of

9

attempted murder, the jury rejected Petitioner’s testimony that the victim was stabbed

10

inadvertently, and instead determined he had the requisite intent to kill the victim. The

11

Report determined that the state court reasonably found it unnecessary to further instruct

12

the jury that Petitioner could not be convicted of attempted murder if the stabbing was an

13

accident. (Dkt. No. 21, Report at 31.)

14

Because the jury was properly instructed on the requisite mental state necessary for

15

an attempted murder conviction, and Petitioner failed to request an instruction on the

16

defense of accident, Petitioner did not meet the heavy burden of demonstrating how the

17

failure of the trial court to instruct the jury sua sponte on the defense of accident “infected

18

the entire trial” that it resulted in a federal due process violation. See Kibbe, 431 U.S. at

19

153-55. Even assuming Petitioner could demonstrate a federal due process violation from

20

the failure to give the instruction, any error is clearly harmless because it could not have

21

had a substantial or injurious effect or influence on the jury’s verdict. See Brecht, 507

22

U.S. at 637. During the trial, the jury was instructed that the prosecution had the burden

23

to prove Petitioner intended to kill the victim when he stabbed her. (Dkt. No. 13-6,

24

Lodgment No. 1, RT at 1217-18.) The victim testified that Petitioner explicitly told her

25

multiple times he was going to kill her (Dkt. No. 13-2, Lodgment No. 1, RT at 359-60),

26

whereas Petitioner testified that the stabbing was inadvertent and accidental. (Dkt. No.

27

13-5, Lodgment No. 1, RT at 1098-1122.) Because the jury was properly instructed on

28

the prosecutor’s burden of proof, and the jury had the choice whether to believe the
26
3:16-cv-00039-GPC-MDD

1

victim’s story of an intentional stabbing or Petitioner’s story of an accidental stabbing, it

2

is clear the trial court’s failure to further instruct the jury on the defense of accident did

3

not have a substantial or injurious effect on the jury’s verdict. See Brecht, 507 U.S. at

4

637.

5

For the foregoing reasons, this Court finds that Claim 3 of the petition is exhausted

6

and not procedurally defaulted, rejects Petitioner’s request to withdraw the claim, and

7

DENIES this claim on the merits because Petitioner has not demonstrated a federal due

8

process violation and even if he did, any error is harmless. The adjudication of this claim

9

by the state court was neither contrary to, nor an unreasonable application of, clearly

10
11
12
13

established federal law. See 28 U.S.C. § 2254(d).
2. Failure to conduct an adequate investigation into potential juror
misconduct (Claim 4)
Petitioner alleges in Claim 4 that the trial court abused its discretion and failed to

14

conduct an adequate investigation into potential juror misconduct. (Dkt. No. 1, Pet. at 32-

15

38.) Petitioner asserts that after a juror informed the trial judge he had received a

16

Facebook post with what appeared to be Petitioner’s photograph and a reference to the

17

availability of a criminal background check, the trial court failed to contact the companies

18

involved or ask the juror if he had conducted an internet search about Petitioner which

19

may have generated the Facebook post. (Id.) Respondent asserts that the trial court

20

conducted an adequate and reasonable investigation when it questioned every juror and

21

discovered no evidence of improper communication, and contends that any suggestion of

22

juror misconduct is purely speculative. (Dkt. No. 12, Answer at 45-49.) Respondent

23

further argues that the state court’s denial of the claim is neither contrary to, nor involves

24

an unreasonable application of, clearly established federal law. (Id.)

25

Petitioner has a Sixth Amendment right to a trial by jury and a verdict which “must

26

be based upon the evidence developed at the trial.” Turner v. Louisiana, 379 U.S. 466,

27

472-73 (1965). This right is implicated if a jury is “exposed to prejudicial extrinsic

28

information . . . during jury deliberation.” Mancuso v. Olivarez, 292 F.3d 939, 949 (9th
27
3:16-cv-00039-GPC-MDD

1

Cir. 2002). When extrinsic evidence is introduced in the jury room, a defendant is entitled

2

to a new trial “if there existed a reasonable possibility that the extrinsic material could

3

have affected the verdict.” United States v. Vasquez, 597 F.2d 192, 193 (9th Cir. 1979);

4

Gibson v. Clanon, 633 F.2d 851, 855 (9th Cir. 1980). However, federal courts must defer

5

to a trial judge’s determination of juror partiality or bias with respect to federal habeas

6

petitions. Miller v. Fenton, 474 U.S. 104, 114 (1985) (noting that a state trial judge is in a

7

far superior position to assess juror bias than federal habeas judges); see also Austad v.

8

Risley, 761 F.2d 1348, 1350 (9th Cir. 1985) (“The Supreme Court has clearly established

9

that the determination of a juror’s partiality or bias is a factual determination to which

10

section 2254(d)’s presumption of correctness applies.”) (citing Pattor v. Yount, 467 U.S.

11

1025, 1036 (1984)). In California, when trial courts become aware of possible jury

12

misconduct, the courts “must make whatever inquiry is reasonably necessary to resolve

13

the matter . . . [and] have considerable discretion in determining how to conduct the

14

investigation.” People v. Virgil, 51 Cal. 4th 1210, 1284 (2011) (internal citations

15

omitted).

16

The last reasoned state court opinion from the Court of Appeal concluded there

17

was nothing in the record to suggest that extrinsic evidence was presented to the jury, and

18

the trial court judge had an adequate basis to conclude the purported misconduct did not

19

require further investigation. (Dkt. No. 13-14, Lodgment No. 7 at 31.) The appellate court

20

reasoned that the trial court did not abuse its investigatory discretion because the juror

21

who received the post stated he could set aside consideration of the post and base his

22

decision on the evidence presented in the courtroom, the other jurors were questioned on

23

their communication with one another and determined to have not sent the post, and all of

24

the jurors were instructed on their duty not to use the Internet in any way in connection

25

with the case and made aware of their responsibility to decide the case based only on

26

evidence presented at trial. (Id. at 28-31.)

27
28

The Magistrate Judge’s Report similarly concluded that the trial court’s
investigation into the origins of the Facebook post was objectively reasonable and did not
28
3:16-cv-00039-GPC-MDD

1

violate Petitioner’s due process rights. (Dkt. No. 21, Report at 35-37.) The Report points

2

out the speculative nature of the claim, noting that nothing in the record suggests

3

extrinsic evidence was presented to the jury, much less that the verdict was affected. (Id.

4

at 35.)

5

As the Report correctly identifies, this Court must defer to the trial court’s

6

determination that the only juror who was exposed to the Facebook post was able to

7

remain impartial. (Id. at 36.) See Miller, 474 U.S. at 114; Austad, 761 F.2d at 1350. Here,

8

Petitioner has not demonstrated that extrinsic evidence was introduced into jury

9

deliberations, or that the trial court’s investigation into the potential juror misconduct was

10

inadequate. The trial judge’s investigation and determination of the matter was not

11

contrary to or an unreasonable application of clearly established federal law, and was not

12

based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d).

13

Furthermore, the jury was already presented evidence during trial about the

14

Petitioner’s former arrests. (Dkt. No. 13-3, Lodgment No. 1, RT at 610-15 [altercation

15

with former wife], RT at 614-18 [violation of restraining order protecting former wife];

16

Dkt. No. 13-4, Lodgment No. 1, RT at 885-89 [conviction for attempting to dissuade

17

witness]; Dkt. No. 13-5, Lodgment No. 1, RT 1026-27 [violation of restraining order

18

protecting victim in present case].) Any mere suggestion of a potential criminal

19

background from a Facebook post would have been duplicative of information the jury

20

was already aware of. Accordingly, it is clear that even if there had been error, any

21

alleged error would have had no impact on the jury’s verdict. See Brecht, 507 U.S. at

22

637.

23

For the foregoing reasons, the Court DENIES Petitioner’s Claim 4 alleging an

24

inadequate investigation of potential juror misconduct, finding that Petitioner has not

25

demonstrated any federal due process violation arising from the alleged error, the trial

26

court’s inquiry into the matter was both reasonable and proper, and thus the state court’s

27

adjudication of the claim was neither contrary to, nor an unreasonable application of,

28

clearly established federal law. See 28 U.S.C. § 2254(d).
29
3:16-cv-00039-GPC-MDD

1

3. Petitioner deprived of effective assistance of counsel (Claim 5)

2

Petitioner alleges in his final claim that he was deprived of his federal

3

constitutional right to the effective assistance of counsel because his trial counsel failed

4

to object to multiple instances of misconduct during the prosecutor’s closing argument.

5

(Dkt. No. 1, Pet. at 39-43.) Specifically, Petitioner contends the prosecutor: (a)

6

improperly commented on Petitioner’s right to be present at the trial and testify; (b)

7

attacked the defense counsel’s integrity; (c) expressed a personal opinion of Petitioner’s

8

guilt; (d) vouched for witnesses; and (e) made a “Golden Rule argument coupled with a

9

law and order appeal.” (Id.) Respondent answers that the denial of this claim by the state

10

court is reasonable because the prosecutor made no objectionable comments and

11

therefore the failure of defense counsel to object did not constitute ineffective assistance.

12

(Dkt. No. 12, Answer at 50-60.)

13

To establish that counsel’s performance was ineffective, Petitioner must show that

14

(1) his “counsel’s representation fell below an objective standard of reasonableness” and

15

(2) that such failure prejudiced him in that there is a “reasonable probability that, but for

16

counsel’s unprofessional errors, the result of the proceeding would have been different.”

17

Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). When considering a claim of

18

ineffective assistance of counsel, a reviewing court must be highly deferential to

19

counsel’s performance. Id. at 689. “Counsel’s competence, however, is presumed and the

20

defendant must rebut this presumption by proving that his attorney’s representation was

21

unreasonable under prevailing professional norms and that the challenged action was not

22

sound strategy.” Kimmelman v. Morrison, 477 U.S. 365, 384 (1986). This necessitates a

23

case-by-case examination of the evidence. See Williams v. Taylor, 529 U.S. 362, 391

24

(2000). Furthermore, when reviewing state prisoner habeas claims based on the

25

ineffective assistance of counsel, federal courts are required to use a “doubly deferential

26

standard of review that gives both the state court and the defense attorney the benefit of

27

the doubt.” Burt v. Titlow, 134 S. Ct. 10, 13 (2013) (quoting Cullen v. Pinholster, 563

28

U.S. 170, 171-72 (2011)).
30
3:16-cv-00039-GPC-MDD

1

Specifically, in the case of federal habeas review of prosecutorial misconduct,

2

“The relevant question is whether the prosecutor[’s] comments so infected the trial with

3

unfairness as to make the resulting conviction a denial of due process.” Darden v.

4

Wainwright, 477 U.S. 168, 181 (1986) (citing Donnelly v. DeChristoforo, 416 U.S. 637

5

(1974)). For purposes of granting federal habeas relief, any prosecutorial trial error must

6

be more than merely undesirable or erroneous, it must rise to the level of a constitutional

7

denial of due process, and be reviewed in the context of the entire trial. Donnelly, 416

8

U.S. at 643; see Cupp, 414 U.S. at 146.

9

The last reasoned decision from the California Court of Appeal denied Petitioner’s

10

claim on the ineffective assistance of counsel. (Dkt. No. 13-20, Lodgment No. 13.) The

11

appellate court first noted that Petitioner’s claim could be denied on the basis that it was

12

untimely and that the trial transcripts were not attached. (Id.) However, the appellate

13

court goes on to conclude, “Butler’s claim also fails on the merits. None of the various

14

remarks by the prosecutor during closing arguments . . . amounted to misconduct . . . and

15

any objection by Butler’s trial counsel properly would have been overruled.” (Id.) The

16

appellate court determined that the failure of Butler’s counsel to make meritless

17

objections could not be the basis for his ineffective assistance of counsel claim. (Id.)

18

Although Petitioner later attached the trial transcript in his subsequent petition to the

19

California Supreme Court and that court denied the claim without citation of authority, it

20

is presumed that the state supreme court adopted the reasoning of the appellate court with

21

respect to the denial of the claim on the merits, rather than on the procedural defect or the

22

option to deny the claim on the basis of untimeliness. Ylst, 423 U.S. at 805 (when

23

deciding the basis of an unexplained denial of a petition for habeas corpus by a state court

24

“we begin by asking which is the last explained state-court judgment on the … claim”)

25

(emphasis in original); see also Barker v. Fleming 423 F.3d 1085, 1091-92 (9th Cir.

26

2005) (finding that the last reasoned decision for purposes of a federal habeas review was

27

the court order “that explained in detail why review was denied and specifically

28

examined the substance of [the] claim.”); Lambert v. Blodgett, 393 F.3d 943, 969 (9th
31
3:16-cv-00039-GPC-MDD

1

Cir. 2004) (“[A] state has ‘adjudicated’ a petitioner's constitutional claim ‘on the merits’

2

for purposes of § 2254(d) when it has decided the petitioner's right to post conviction

3

relief on the basis of the substance of the constitutional claim advanced, rather than

4

denying the claim on the basis of a procedural or other rule precluding state court review

5

of the merits.”).

6

The Magistrate Judge’s Report found that the comments made by the prosecutor

7

during closing arguments were proper and did not rise to the level of prosecutorial

8

misconduct, and Petitioner failed to demonstrate he was prejudiced by his counsel’s

9

failure to object to these comments “because they did not violate due process, and

10

because an objection, had it been made and sustained, would have resulted in a curative

11

instruction identical to those already given, namely, informing the jury that the argument

12

of counsel is not evidence but merely an expression of their opinion as to what the

13

evidence shows.” (Dkt. No. 21, Report at 45). The Report emphasized that the trial judge

14

reminded the jurors before closing arguments that attorneys’ comments did not constitute

15

evidence and were presented merely to “outline for you his or her interpretation as to

16

what the evidence has shown.” (Dkt. No. 21, Report at 42; see Dkt No. 13-6, Lodgment

17

No. 1, RT at 1243.) Given these instructions and the permissibility of the prosecutor’s

18

statements during closing arguments, the Report concludes that it was objectively

19

reasonable for the state court to find defense counsel was not ineffective for failing to

20

object. (Dkt. No. 21, Report at 43.)

21

As explained below, this Court similarly concludes that the statements made by the

22

prosecutor during closing arguments did not constitute prosecutorial misconduct and any

23

failure to object by Petitioner’s counsel did not rise to the level of a federal due process

24

violation for ineffective assistance of counsel.

25

First, Petitioner alleges that the prosecutor improperly commented on his right to

26

be present at trial when she noted his ability to tailor his testimony and explain away his

27

guilt during closing arguments. (Dkt. No. 1, Pet. at 39.) Despite Petitioner’s contention

28

that this statement rises to the level of prosecutorial misconduct, the Supreme Court has
32
3:16-cv-00039-GPC-MDD

1

held a prosecutor’s statement that “the defendant has [the] benefit [of] get[ting] to sit here

2

and listen to the testimony of all the other witnesses before he testifies” does not violate a

3

habeas petitioner’s constitutional right to be present at trial. Portuondo v. Agard, 529 U.S.

4

61, 64-65 (2000). The statement made by the prosecutor in Petitioner’s case is very

5

similar to that in the Portuondo case. (Dkt. No. 13-6, Lodgment No. 1, RT at 1245,

6

“[Petitioner] got to sit here and listen to all the evidence against him before he ever raised

7

his hand and took an oath to tell the truth.”) Accordingly, Petitioner fails to show how the

8

prosecutor’s statement on his ability to tailor his testimony is contrary to clearly

9

established federal law under Portuondo, 529 U.S. at 64-65.

10

Next, Petitioner contends that the prosecutor improperly attacked the integrity of

11

his defense counsel in her rebuttal to closing arguments when she stated defense counsel

12

“glossed over the law” and “glossed over his client’s testimony.” (Dkt. No. 1, Pet. at 39.)

13

The prosecutor continued before the jury, “When you sit here and you are given two

14

different versions of evidence, two different versions of truth of what happened, and the

15

defense attorney stands up and glosses over his own client’s testimony, you as a jury are

16

called upon to use your common sense and to wonder how much sense that makes to you.

17

How much sense does it make . . . not to pick apart what his client said, but to gloss over

18

it, to gloss over the law, and then spend the bulk of the argument going into every little

19

detailed statement Danielle made[?]” (Id.) The Ninth Circuit has held a prosecutor is

20

“free to voice doubt about the veracity of a defendant’s story [when] the inference that

21

one side is lying is unavoidable” and there is evidence to support such attack. Dubria v.

22

Smith, 224 F.3d 995, 1004 (9th Cir. 2000); see also United States v. Sayetsitty, 107 F.3d

23

1405, 1409 (9th Cir. 1997) (“Criticism of defense theories and tactics is a proper subject

24

of closing arguments.”) Here, the prosecutor’s statement that defense counsel “glossed

25

over the law” (Dkt. No. 13-6, Lodgment No. 1, RT at 1324) was an attempt to urge the

26

jury to select from two different versions of the truth and is a proper closing argument

27

attack on the defense theory of the case. Such a statement does not rise to the level of

28

prosecutorial misconduct under clearly established federal law. See Smith, 224 F.3d at
33
3:16-cv-00039-GPC-MDD

1

1004; Sayetsitty, 107 F.3d at 1409.

2

Additionally, Petitioner alleges the prosecutor improperly expressed her personal

3

opinion of Petitioner’s guilt and improperly vouched for the credibility of the witnesses.

4

(Dkt. No. 1, Pet. at 40-42.) Specifically, Petitioner has issue with the prosecutor’s

5

expression of her personal opinion through her comments: “Now, he selected Danielle for

6

specifically one reason: He thought he could get away with what he did.” (Dkt. No. 13-6,

7

Lodgment No. 1, RT at 1248); “I think his right to have a relationship with Danielle D.

8

ended when he forcefully sodomized her in the back of the car, when he ripped her anus

9

open to the point where she was oozing blood, when he stuck a knife in her back when

10

she was crying in terror, running into the arms of a complete stranger, begging for help.”

11

(Id. at 1249); “And when I take you through the evidence in this case, I suggest to you

12

that the defense’s theory is completely unreasonable.” (Id. at 1255); “He did not act in

13

self-defense in this case, His actions are not reasonable in any way.” (Id. at 1354); and “I

14

know it’s been a long day, but it is important in this case to talk about the reasonableness

15

of the defendant’s version and the unreasonableness.” (Id. at 1355.) Petitioner further

16

objects to comments made by the prosecutor that the victim “was honest with you about

17

her shortcomings. She is not a liar. She was honest about the fact that she had had

18

consensual vaginal sex with him that morning. She never hid that fact from anyone. She

19

never told anyone that didn’t happen. She didn’t have to volunteer that information. If

20

she was trying to make herself look better, she absolutely didn’t need to be forthcoming

21

about that information, but she was, because she was telling the truth,” that Petitioner’s

22

ex-wife’s testimony was “totally credible,” that Petitioner’s account of events was “not

23

what happened,” and Petitioner “thought he could get away with it.” (Id. at 1248, 1251,

24

1327, 1329.) Although vouching for a witness is improper when a prosecutor expresses

25

her personal opinion of the defendant’s guilt, United States v. Younger, 398 F.3d 1179,

26

1190 (9th Cir. 2005), or places the prestige of the government behind a witness’s

27

credibility, United States v. Molina, 934 F.2d 1440, 1444 (9th Cir. 1991), the Supreme

28

Court has concluded that improper vouching does not occur when the comments are
34
3:16-cv-00039-GPC-MDD

1

invited by a defense counsel’s attack on credibility, and when a prosecutor does not say

2

or insinuate that the statement was based on anything other than witness testimony. Lawn

3

v. United States, 355 U.S. 339, 359 n.15 (1958). Petitioner has made no showing that the

4

prosecutor relied on anything other than witness testimony and facts stated therein.

5

Furthermore, the prosecutor’s remarks fit within the reasonable latitude prosecutors have

6

to argue one of the two sides is lying. Molina, 934 F.2d at 1444 (stating it is reasonable to

7

argue one of two sides is lying during closing arguments in a case that essentially reduces

8

to which of two conflicting stories is true). The Supreme Court has also held that when

9

jury instructions are given that clarify that attorney comments are not evidence, as the

10

jury was instructed immediately before closing arguments in Petitioner’s trial, including

11

that the attorney’s comments were presented to “outline for you his or her interpretation

12

as to what the evidence has shown”, (Dkt. No. 13-6, Lodgment No. 1, RT at 1243), any

13

possible prejudice from prosecutorial statements on the weight of evidence is properly

14

mitigated. Darden, 477 U.S. at 182 (finding no due process violation where the weight of

15

the evidence was against the petitioner, the prosecutor’s remarks were invited by defense

16

argument and did not misstate or manipulate the evidence, and were cured by the

17

instructions). Petitioner has failed to show how the prosecutor’s statements regarding his

18

guilt and the credibility of the witnesses violate clearly established federal law. See

19

Lawn, 355 U.S. at 359 n.15.

20

Lastly, Petitioner contends the prosecutor improperly invoked the golden rule and

21

appealed to law and order when she told the jury they “had the power to end the

22

nightmare” for the victim. (Dkt. No. 1, Pet. at 42.) This statement, viewed in the context

23

of the entire trial, was a comment on the strength of the evidence against Petitioner and

24

the severity of the crime, not appealing for revenge. The prosecutor continued, “And for

25

one year she has waited, ladies and gentlemen. In this case he’s guilty of each and every

26

charge and allegation. He is used to being in power and control. And the power and

27

control is in your hands collectively, together, as jurors. You can take your time if you

28

need to, but in this case you need to do justice because it is the right thing, and the only
35
3:16-cv-00039-GPC-MDD

1

consistent and inescapable truth in this case is that he is guilty of each and every one of

2

these crimes.” (Dkt. No. 13-6, Lodgment No. 1, RT at 1363-64.) Here, the prosecutor did

3

not misstate or manipulate the evidence, the jury was instructed that attorney comments

4

were not evidence but only opinions, and requesting the jury return a guilty verdict is the

5

goal of a prosecutor whose role it is to vindicate the public’s interest in punishing crime.

6

See Darden, 477 U.S. at 181-82; Drayden v. White, 232 F.3d 704, 712-713 (9th Cir.

7

2000). Nevertheless, even if the comments went further than asking the jury to vindicate

8

the public’s interest in punishing the crime, in light of the strength of the evidence against

9

Petitioner, including his past history of similar domestic violence, it is clear the

10

comments did not “so infect[] the trial with unfairness as to make the resulting conviction

11

a denial of due process.” Darden, 477 U.S. at 182 (finding no due process violation where

12

the weight of the evidence was against the petitioner, the prosecutor’s remarks were

13

invited by defense argument and did not misstate or manipulate the evidence, and were

14

cured by the instructions).

15

In sum, federal law precedence makes it clear that the statements made by the

16

prosecutor during closing arguments, which Petitioner alleges constitute prosecutorial

17

misconduct, were proper and his counsel’s failure to object to these statements did not

18

rise to the level of a due process violation. Furthermore, Petitioner has not shown that

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defense counsel’s failure to object to the prosecutor’s statements was not a legitimate trial

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strategy intended to avoid drawing attention and scrutiny to the weaknesses of

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Petitioner’s case. See Kimmelman, 477 U.S. at 384. Given the permissibility of the

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prosecutor’s statements made during closing arguments, the potential that defense

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counsel intentionally withheld any objections to avoid exposing the weaknesses of the

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case, and the fact the jury was instructed prior to closing arguments that what the

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attorneys say is not evidence, Petitioner fails to show how the state court adjudication of

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Claim 5 was contrary to or an unreasonable application of clearly established federal law.

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His counsel’s representation did not fall below an objective standard of reasonableness

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and there is no evidence such objections would have resulted in a different outcome. See
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Strickland 466 U.S. at 688.

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After examining the statements made by the prosecutor and conduct of counsel in

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context of the entire trial, and under the “doubly deferential” standard of review giving

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the state court and defense attorney the benefit of the doubt, this Court finds no federal

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due process violation. See Titlow, 134 S. Ct. at 13. For the foregoing reasons, the Court

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DENIES habeas relief for Petitioner’s Claim 5 alleging ineffective assistance of counsel

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for failing to object to prosecutor’s comments, finding that Petitioner has not

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demonstrated any federal due process violation arising from the alleged error, and the

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state court’s adjudication of the claim is neither contrary to, nor an unreasonable

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application of, clearly established federal law. See 28 U.S.C. § 2254(d).

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CERTIFICATE OF APPEALABILITY

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A petitioner complaining of detention arising from state court proceedings must

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obtain a certificate of appealability to file an appeal of the final order in a federal habeas

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proceeding. 28 U.S.C. § 2253(c)(1)(A). The district court may issue a certificate of

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appealability if the petitioner "has made a substantial showing of the denial of a

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constitutional right." Id. at (c)(2). To make a "substantial showing," the petitioner must

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"demonstrat[e] that reasonable jurists would find the district court's assessment of the

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constitutional claims debatable." Beaty v. Stewart, 303 F.3d 975, 984 (9th Cir. 2002)

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(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Petitioner has not made a

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"substantial showing" as to any of the claims raised by his Petition, and thus the Court

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DENIES a certificate of appealability.

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CONCLUSION

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For all of the foregoing reasons, this Court: (1) ADOPTS the Magistrate Judge’s

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Report in its entirety denying the petition for writ of habeas corpus, and (2) DENIES a

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certificate of appealability.

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IT IS SO ORDERED.
Dated: April 12, 2017

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