Torres v. Madden

Filing 23

ORDER adopting 21 Report and Recommendation and denying Petitioner's Petition for Writ of Habeas Corpus. Signed by Judge Janis L. Sammartino on 9/17/2018. (All non-registered users served via U.S. Mail Service)(jpp)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MIGUEL ANGEL TORRES,

Case No. 17-CV-865 JLS (PCL)
Petitioner,

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ORDER ADOPTING REPORT AND
RECOMMENDATION

v.
RAYMOND MADDEN, Warden,

(ECF Nos. 1, 21)

Respondent.

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Presently before the Court is Petitioner’s Petition for Writ of Habeas Corpus

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(“Petition,” ECF No. 1). Also before the Court are Respondent’s Response to Petition for

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Writ of Habeas Corpus (“Response,” ECF No. 15), and Petitioner’s Traverse (ECF No.

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17). Magistrate Judge Peter C. Lewis has issued a Report and Recommendation (“R&R,”

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ECF No. 21), recommending that the Court deny the Petition. Having reviewed the Parties’

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arguments, Magistrate Judge Lewis’ R&R, and the underlying factual record, the Court

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ADOPTS Magistrate Judge Lewis’ Report and Recommendation in its entirety.

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BACKGROUND

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Magistrate Judge Lewis’ R&R contains a thorough and accurate recitation of the

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factual and procedural histories underlying the instant Petition for Writ of Habeas Corpus.

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See R&R at 2–13. 1 This Order incorporates by reference the background as set forth

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therein.

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LEGAL STANDARD

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Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district

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court’s duties in connection with a magistrate judge’s report and recommendation. The

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district court must “make a de novo determination of those portion of the report to which

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objection is made,” and “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see also United

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States v. Raddatz, 447 U.S. 667, 673–76 (1980); United States v. Remsing, 874 F.2d 614,

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617 (9th Cir. 1989). However, in the absence of timely objection, the Court “need only

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satisfy itself that there is no clear error on the face of the record in order to accept the

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recommendation.” Fed. R. Civ. P. 72 advisory committee’s note to 1983 amendment

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(citing Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)); see also United

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States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (“[T]he district judge must

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review the magistrate judge’s findings and recommendations de novo if objection is made,

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but not otherwise.”).

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ANALYSIS

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In this present case, neither Party has filed objections to Magistrate Judge Lewis’

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R&R. See R&R at 8 (objections due by July 6, 2018). Having reviewed the R&R, the

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Court finds that it is thorough, well-reasoned, and contains no clear error.

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Petitioner argues his due process rights were violated by the trial court’s admission

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of prior sexual offenses, the trial court’s response to a jury note, trial counsel’s

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Pin citations to docketed materials refer to the CM/ECF page numbers electronically stamped at the top
of each page.
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constitutionally ineffective assistance, and the cumulative effect of all these errors.

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I.

Admission of Prior Sexual Offenses

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In this case, the trial court allowed Petitioner’s prior convictions to be admitted into

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court. Lodgment, ECF No. 16-13 at 23. Petitioner argues that the admission of his prior

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convictions for lewd acts with a child violated his federal due process right to a fair trial

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because the trial court did not consider excluding irrelevant and inflammatory details

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regarding the prior convictions. Pet. at 6–10. Both the trial court and the state appellate

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court found that the prior convictions were relevant and admissible under California

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Evidence Code §§ 1101, 1108, and 352. Lodgment, ECF Nos. 16-1, 16-3.

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In his R&R, Magistrate Judge Lewis found that Petitioner’s prior convictions were

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“undeniably relevant to the jury’s decision as to whether he molested [the victim]” and

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“helped establish the necessary intent and motive to convict [him] of the crimes.” R&R at

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20. Magistrate Judge Lewis also found “there is no Supreme Court law which holds that

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character or ‘propensity’ evidence is inadmissible or violates due process” and that “the

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Supreme Court expressly reserved deciding that issue in Estelle v. McGuire, 502 U.S. 62,

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75, n.5 (1991).” R&R at 19. Accordingly, Magistrate Judge Lewis concluded that

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“because there is no clearly established Supreme Court law holding the admission of

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propensity evidence violates due process, the state court’s rejection of [Petitioner’s prior

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convictions claim]” did not violate Petitioner’s rights of due process. Id. at 19–20.

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Petitioner does not object to Magistrate Judge Lewis’s recommendation and the

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Court finds no clear error in the recommendation. Where Supreme Court “cases give no

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clear answer to the question presented, let alone one in [the petitioner’s] favor, ‘it cannot

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be said that the state court unreasonabl[y] appli[ed] clearly established Federal law.”

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Wright v. Van Patten, 552 U.S. 120, 126 (2008) (alterations in original); see also Alberni

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v. McDaniel, 458 F.3d 860, 865 (9th Cir. 2006) (denying habeas relief on claim that due

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process was violated by admission of evidence of defendant’s past violent actions and

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explosive temper to show propensity due to Estelle’s reservation of the question whether

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propensity evidence violates due process). Petitioner is not entitled to federal habeas relief
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on this claim and the Court therefore ADOPTS the R&R and DENIES the Petition as to

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this claim.

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II.

Trial Court’s Response to the Jury Note

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Petitioner was charged with four counts of lewd and lascivious acts. The four counts

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are referred to as: (1) the “first time” leg-touching of the victim; (2) “last time” leg-

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touching; (3) “first time” stomach-touching; and (4) “last time” stomach-touching. These

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incidents allegedly occurred between January 1, 2011, and October 16, 2012. During jury

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deliberations, the jury sent out a note with two questions:

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[Question No. 1:] The charges refer to a ‘first time’ and ‘last
time.’ If the jury were to agree that one instance happened,
wouldn’t that also be a ‘first time’ and ‘last time’?

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[Question No. 2:] Defendant is charged with offenses [o]ccurring
at Craigie Street, Jan. 1 2011 through Oct. 16, 2012. Does that
[m]ean we are not to consider [e]vents that may or may not have
[o]ccurred at the Lakeside and Home Avenue addresses?

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Lodgment, ECF No. 16-13 at 45 (alterations in original).

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The judge responded to the jury’s questions:

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Yes. Counts 2 and 4 refer to [e]vents alleged to have occurred at
the Craigie Street address.

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You may consider all the [e]vidence that was admitted at trial.

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Id. at 48. The jury ultimately concluded Petitioner was guilty on all four counts; however,

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the state appellate court reversed counts one and three. Id. at 48–50.

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In his R&R, Magistrate Judge Lewis noted that although the instructions regarding

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the dates of the incidents were conflicting, for Petitioner to be granted relief, the

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instructions must have caused a “substantial and injurious effect on influence in

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determining the jury’s verdict.” R&R at 2 (quoting Brecht v. Abrahamson, 507 U.S. 619,

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637–38 (1993)). The victim testified that Petitioner molested her starting in 2010 and

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ending in October of 2012. R&R at 24. Further, there are various pieces of evidence that
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likely demonstrated to the jury at “at least one instance of touching occurred a short time

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before the victim reported [Petitioner]” which occurred in 2012. Id. at 24. Therefore, even

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without the confusing jury instructions, the jury would have reached a guilty verdict on

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counts two and four. Magistrate Judge Lewis therefore recommends denying the petition.

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The Court finds no clear error in Magistrate Judge Lewis’s recommendation.

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Although the jury instructions were confusing, the jury had sufficient evidence to reach the

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verdict that was upheld by the appellate court. The Court therefore ADOPTS the R&R

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and DENIES Petitioner’s Petition as to this claim.

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III.

Ineffective Assistance of Counsel

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Petitioner argues his trial counsel was ineffective for two reasons: his counsel

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(1) should have argued for Petitioner’s prior convictions to be sanitized and for the

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testimony about the prior convictions be restricted after the trial court denied counsel’s

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motion to exclude the prior convictions, Pet. at 17–19, and (2) should have moved for a

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mistrial after a prospective juror expressed her opinions about sex offenders’ recidivism

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rates, id. at 20–24.

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A.

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Prior to trial, Petitioner’s counsel filed a motion to exclude Petitioner’s prior

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convictions. Lodgment, ECF No. 16-1 at 8–11. The trial judge ruled the prior convictions

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were admissible under California Evidence Code §§ 1101, 1108, and 352. Lodgment, ECF

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No. 16-1 at 11. Petitioner argues his counsel provided him ineffective assistance because

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counsel should have asked the court to sanitize Petitioner’s prior convictions, exclude

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certain details regarding his prior convictions, and redact his interview with the police

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about his prior convictions. Pet. at 19.

Failure to Request that Prior Convictions be Sanitized

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The state appellate court disagreed with Petitioner. Lodgment, ECF No. 16-13 at

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38. It held that Petitioner’s counsel “made reasonable and concerted efforts to exclude the

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challenged evidence.” Id. The state appellate court concluded that Petitioner’s counsel

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had made “vigorous efforts to persuade the court during the in limine proceedings to

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exclude the evidence” of the prior convictions and “made additional efforts to exclude” the
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prior convictions and “was successful in persuading the court to exclude some of it.” Id.

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In his R&R, Magistrate Judge Lewis determined Petitioner had not established his trial

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counsel was constitutionally ineffective. R&R at 28. Petitioner does not object to

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Magistrate Judge Lewis’s recommendation.

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The Court finds no clear error in Magistrate Judge Lewis’s recommendation.

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Petitioner has not established that trial counsel’s actions were unreasonable, nor that

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Petitioner was prejudiced by any error. The Court therefore ADOPTS the R&R and

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DENIES Petitioner’s Petition as to this claim.

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B.

Failure to Move for a Mistrial During Voir Dire

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During voir dire, Petitioner’s counsel asked the prospective jurors if there was

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“anything about this case that you tell yourself, ‘I can’t [be fair]?’” Lodgment, ECF No.

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16-13 at 40. Juror No. 90 responded she was a neuroscientist who “specializ[ed] in fear,

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rage, and attraction” and so had a “special expertise” that “would probably add bias to the

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jury.” Id. Juror No. 90 went on to say she believed sexual offenders are “likely to repeat

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their behavior.” Id. at 41. Both the prosecution and the defense moved to dismiss Juror

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No. 90, and the court granted the motion. Id.

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Petitioner argues trial counsel was ineffective for not moving for a mistrial after the

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prospective juror expressed her opinions about sex offenders’ recidivism rates. Pet. at 20–

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24. In support, Petitioner cites to Mach v. Stewart, 137 F.3d 630 (9th Cir. 1997).

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In Mach, the defendant “was charged with sexual conduct with a minor under 14

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years of age.” 137 F.3d at 632. During voir dire, a prospective juror, who worked as a

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social worker, stated she did not believe she could be impartial because “sexual assault had

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been confirmed in every case in which one of her clients [had] reported such an assault.”

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Id. The prospective juror stated that, as a social worker, she never “became aware of a case

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in which a child had lied about being sexually assaulted.” Id. In four separate statements,

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she stated she had never “become aware of a case in which a child had lied about being

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sexually assaulted.” Id. She stated she had “taken psychology courses and worked

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extensively with psychologists and psychiatrists.” Id. Defense counsel moved for a
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mistrial on the basis that the prospective juror’s statements had tainted the entire juror pool.

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Id. The court denied the motion, and defendant was convicted. Id. The Arizona Supreme

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Court and the district court denied defendant’s petition for review. Id. The Ninth Circuit,

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however, reversed defendant’s conviction, reasoning that the nature of the prospective

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juror’s statements, “the certainty with which they were delivered, the years of experience

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that led to them, and the number of times that they were repeated” could have tainted at

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least one juror. Id. at 633.

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In his R&R, Magistrate Judge Lewis found that, unlike the prospective juror in

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Mach, Juror No. 90 here did not make definitive or conclusive statements that children

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never lie about being sexually abused or repeatedly make statements about sexual abuse.

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R&R at 29 (citing Lodgment, ECF No. 16-13 at 41). Juror No. 90 only stated that in her

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own personal opinion she “would probably add bias to the jury” because she believed

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sexual offenders are “likely to repeat their behavior.” Lodgment, ECF No. 16-13 at 41.

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Magistrate Judge Lewis concluded Juror No. 90’s personal beliefs and opinions likely did

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not taint the other prospective jurors. R&R at 29. Therefore, Petitioner’s counsel did not

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provide ineffective assistance in not moving for a mistrial after voir dire.

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Petitioner does not object to Magistrate Judge Lewis’s recommendation. The Court

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finds no clear error in Magistrate Judge Lewis’s recommendation.

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proven his counsel was ineffective under Strickland v. Washington, 466 U.S. 668 (1984).

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The Court therefore ADOPTS the R&R and DENIES Petitioner’s Petition as to this claim.

Petitioner has not

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C.

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Petitioner argues the above-enumerated errors had a cumulative effect, which

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violated his due process rights. The Court has found that none of Petitioner’s claims

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amounted to errors. Because no errors occurred, cumulative error is not possible. Hayes

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v. Ayers, 632 F.3d 500, 523–24 (9th Cir. 2011).

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Cumulative Error

The Court finds no clear error in Magistrate Judge Lewis’s recommendation. The

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Court therefore ADOPTS the R&R and DENIES Petitioner’s Petition as to this claim.

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CONCLUSION

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Accordingly, the Court hereby: (1) ADOPTS Magistrate Judge Lewis’ Report and

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Recommendation (ECF No. 21); (2) and DENIES Petitioner’s Petition for Writ of Habeas

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Corpus (ECF No. 1).

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IT IS SO ORDERED.

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Dated: September 17, 2018

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