SHEILA K. OBERTO, Magistrate Judge.
Petitioner, Tommy William Cross, is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner alleges one ground for habeas relief: violation of his Fourteenth Amendment rights pursuant to Brady v. Maryland.
On October 9, 2013, around 2:30 or 3:00 p.m., Randall Ryan Beasley ("Beasley") and Andrea Vernon ("Vernon") entered Oak Lane Liquor, located in Bakersfield, California, and began taking liquor bottles from the display shelves. Surjit Singh ("Singh"), the store owner, grabbed Vernon, who was filling her purse with bottles. Beasley yelled, "Don't touch my lady, motherfucker." Singh grabbed a baseball bat from the counter, but was confronted by Beasley, who placed one of two whiskey bottles he was holding next to Singh's head and said, "If you move, I'm going to blow your head off." Beasley and Vernon fled with approximately 10 bottles.
Singh called 911 and told the dispatcher Beasley, an African-American man, and Vernon, an African-American woman, "stole [his] liquor," "tried to fight [him]," and "grabbed [his] neck," but "didn't hit [him]." He also stated Beasley "want[ed] to hit [him] with [a] bottle." Singh stated he "called 911" "a couple of days ago" but "nobody came." The dispatcher replied, "nobody's going to come for this. We're going to give the information to the officers that are in the area. And then somebody's going to call you over the phone to give you a report."
At trial, the officer testified that upon his arrival at the liquor store on October 9, 2013, Singh remarked, "It took you guys so long to get here. . . ." Singh reported he was already behind the counter when Beasley and Vernon entered the store. When Singh confronted the pair, Beasley grabbed a bottle, "held it over his head" "[a]s if he was going to hit [Singh] with it," and "cornered [Singh]," which allowed Vernon to take more bottles unimpeded. Singh did not say that Beasley held two bottles and threatened to "blow his head off" or that either Beasley or Vernon touched him. The officer did not see any signs of a struggle inside the store.
On October 10, 2013, at approximately 3:00 p.m., Singh was assisting a female customer when he saw Beasley, Vernon, and Petitioner approaching the store. He attempted to block the entrance, but Beasley and Vernon pushed the doors open, causing him to stumble backwards. As Petitioner and Vernon were filling a duffel bag with liquor bottles, Singh went to the counter for his phone and bat. According to Singh, Beasley pointed a gun at his head and warned, "If you call the police, I'm going to blow your head off. . . . Motherfucker, if you move, I'm going to blow your head off."
Singh grabbed his phone, went outside, and spotted the three next to a car. Petitioner placed the duffel bag in the trunk. As they were driving off, Singh called 911 and told the dispatcher the "same people stole [his] liquor again" and "they got a gun to[o]." Singh described Petitioner as a Caucasian male and the getaway vehicle as a gray four-door Chevrolet Impala. He provided the license plate number and stressed he "called [911 at the] same time yesterday" and Beasley and Vernon "did the same thing yesterday."
In response to the robbery call, at approximately 5:20 p.m., two officers drove around the area of the liquor store looking for Petitioner, Beasley, and Vernon. The officers found them approximately one and one-half miles southeast of the store in a gray four-door Honda Accord. Petitioner was the driver, Beasley was the front passenger, and Vernon was in the rear seat. One of the officers testified the trio "appeared to be looking directly at [the] patrol vehicle" and "appeared agitated and nervous . . . by [the officers'] presence."
A license plate check showed the vehicle was reported stolen. When officers approached Petitioner, Beasley, and Vernon, they were standing near the vehicle and began walking away from it. The officers ordered them to stop and detained Beasley and Vernon without incident. Petitioner resisted arrest and was found with a fixed-blade knife.
The Honda Accord was still running when the officers arrested Beasley, Vernon, and Petitioner, but it did not have a key in the ignition. A search of the vehicle revealed a duffel bag filled with approximately 16 bottles of alcohol. The police also found two vodka bottles in Vernon's purse. A firearm was not found.
During an interview at his liquor store, Singh stated Beasley, Vernon, and Petitioner pushed the door open. Immediately thereafter, Beasley took out his gun, pointed it at Singh's head, and directed Singh to stay behind the cash register. Beasley threatened to "blow [Singh's] head off" if Singh touched anything. As Beasley was leaving the store, he taunted Singh, stating "Go ahead and call the police because they're not going to come."
An officer transported Singh to the location of Beasley, Vernon, and Petitioner's arrest for an infield show-up. Singh identified the three as the culprits. Singh also recognized the getaway vehicle,
When questioned about how he came into possession of the Honda Accord, Petitioner claimed a stranger gave him the car and car keys for free when he was walking that morning.
At trial, Singh acknowledged that he was previously convicted of selling tobacco to a minor. (Cal. Penal Code § 308(a)) in 2008 and 2012.
A 911 dispatcher testified at trial that dispatchers prioritized 911 calls in the following manner:
Armed robbery, for instance, warranted a priority one call.
On October 7, 2013, the dispatcher received a "petty theft" call from Singh in which Singh claimed an African-American prostitute tried to steal a whiskey bottle.
Defendants were jointly charged with burglary of a liquor store (Cal. Penal Code § 460(b), [count 5]); criminal threats (Cal. Penal Code § 422, [count 6]); and robbery (Cal. Penal Code § 212.5(c), [count 7]) on or around October 10, 2013. Petitioner was also charged with unlawfully driving or taking a vehicle without the vehicle owner's consent (Cal. Veh. Code § 10851(a), [count 1]) between October 7 and 10, 2013; receiving a stolen vehicle (Cal. Penal Code § 496d(a), [count 2]); carrying a concealed dirk or dagger (Cal. Penal Code § 21310, [count 8]); and resisting, delaying, or obstructing a peace officer (Cal. Penal Code § 148(a)(1), [count 9]) on or around October 10, 2013.
It was further alleged in counts 1, 2, and 5 through 8, that Petitioner had served four prior prison terms (Cal. Penal Code § 667.5(b)), and in counts 5 through 7, Petitioner was alleged to have known Beasley was personally armed (Cal. Penal Code § 12022(d)).
Before trial, at the prosecution's request, the trial court dismissed count 6, making criminal threats. The trial court also bifurcated the recidivist enhancement allegations.
Petitioner's attorney did not dispute liquor bottles were taken from Singh's store. However, the attorney questioned the veracity of Singh, the prosecution's key witness. The attorney theorized Singh lied to the 911 dispatcher about Beasley possessing a firearm on October 10, 2013, to elicit a faster response from law enforcement. The attorney also highlighted Singh's repeated convictions for selling tobacco to a minor, and his inconsistent statements about what exactly transpired on October 9 and 10.
On January 27, 2014, the jury found Petitioner guilty on the substantive offenses, but was evenly split on the firearm enhancement allegations. At the prosecution's request, the trial court dismissed these allegations. In the bifurcated proceeding, the court found true the recidivist enhancement allegations.
Petitioner received an aggregate sentence of 10 years, 4 months: (1) 9 years on count 7, comprised of an upper term of 5 years plus 4 years for the four prior prison terms; (2) 8 months on count 1; (3) 8 months on count 8; and (4) a concurrent 139 days on count 9. The trial court stayed execution of punishment on counts 2 and 5.
Singh was arrested on February 7, 2014, as part of a sting operation.
On March 5, 2014, Petitioner filed a motion for a new trial, claiming the prosecution violated Brady by withholding evidence and undermining the credibility of Singh, specifically that Singh was arrested. At the March 27, 2014 motion hearing, Detective Lonnie Mills ("Mills") of the Bakersfield Police Department's vice unit testified. Mills testified that his sergeant was contacted by a local supermarket's supervising loss prevention agent in August or September 2013, stating some of the supermarket's alcohol products were on display at Singh's liquor store. The vice unit commenced a three-day sting operation, which took place on January 24, February 5, and February 7, 2014. On those days, undercover vice officers sold Singh what were represented to be stolen liquor bottles.
On April 1, 2014, the trial court denied the motion for a new trial based on the evidence that Singh had been arrested on February 7, 2014. Specifically, the trial court held:
The California Court of Appeal ("Court of Appeal") affirmed the judgment on October 5, 2016. On January 11, 2017, the California Supreme Court summarily denied review.
Petitioner filed his petition for writ of habeas corpus with this Court on July 5, 2017. Respondent filed a response on September 11, 2017.
A person in custody as a result of the judgment of a state court may secure relief through a petition for habeas corpus if the custody violates the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. 362, 375 (2000). On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed thereafter. Lindh v. Murphy, 521 U.S. 320, 322-23 (1997). Under the statutory terms, the petition in this case is governed by AEDPA's provisions because it was filed April 24, 1996.
Habeas corpus is neither a substitute for a direct appeal nor a device for federal review of the merits of a guilty verdict rendered in state court. Jackson v. Virginia, 443 U.S. 307, 332 n. 5 (1979) (Stevens, J., concurring). Habeas corpus relief is intended to address only "extreme malfunctions" in state criminal justice proceedings. Id. Under AEDPA, a petitioner can obtain habeas corpus relief only if he can show that the state court's adjudication of his claim:
28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 U.S. at 413.
"By its terms, § 2254(d) bars relitigation of any claim `adjudicated on the merits' in state court, subject only to the exceptions set forth in §§ 2254(d)(1) and (d)(2)." Harrington v. Richter, 562 U.S. 86, 98 (2011).
As a threshold matter, a federal court must first determine what constitutes "clearly established Federal law, as determined by the Supreme Court of the United States." Lockyer, 538 U.S. at 71. In doing so, the Court must look to the holdings, as opposed to the dicta, of the Supreme Court's decisions at the time of the relevant state-court decision. Id. The court must then consider whether the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law." Id. at 72. The state court need not have cited clearly established Supreme Court precedent; it is sufficient that neither the reasoning nor the result of the state court contradicts it. Early v. Packer, 537 U.S. 3, 8 (2002). The federal court must apply the presumption that state courts know and follow the law. Woodford v. Visciotti, 537 U.S. 19, 24 (2002). The petitioner has the burden of establishing that the decision of the state court is contrary to, or involved an unreasonable application of, United States Supreme Court precedent. Baylor v. Estelle, 94 F.3d 1321, 1325 (9
"A federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Lockyer, 538 U.S. at 75-76. "A state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision." Harrington, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Thus, the AEDPA standard is difficult to satisfy since even a strong case for relief does not demonstrate that the state court's determination was unreasonable. Harrington, 562 U.S. at 102.
Petitioner contends the prosecution suppressed material evidence, violating his due process rights pursuant to the duties established in Brady v. Maryland, 373 U.S. 83 (1963). Specifically, Petitioner alleges the prosecution failed to timely reveal to the defense that the liquor store owner and prosecution witness, Singh, was the subject of a sting operation undertaken by the Vice Unit of the Bakersfield Police Department on January 24, 2014, which resulted in his later arrest. (Doc. 1 at 22.) Respondent counters the Court of Appeal's rejection of Petitioner's claim was reasonable. (Doc. 12 at17.)
A defendant has the right to request and obtain from the prosecution evidence that is either material to the guilt of the defendant or relevant to the punishment imposed. Brady, 373 U.S. at 87. Even in the absence of a specific request, the prosecution has a constitutional duty to turn over exculpatory evidence that would raise a reasonable doubt about a defendant's guilt. United States v. Agurs, 427 U.S. 97, 112 (1976). This disclosure duty extends to evidence that the defense might use to impeach a prosecution witness. United States v. Bagley, 473 U.S. 667, 676 (1985).
"[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Id. at 682. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.
To establish a Brady violation undermines a conviction, Petitioner must show: "(1) the evidence at issue is `favorable to the accused, either because it is exculpatory, or because it is impeaching'; (2) the State suppressed the evidence, `either willfully or inadvertently'; and (3) `prejudice . . . ensued.'" Skinner v. Switzer, 562 U.S. 521, 536 (2001) (quoting Strickler v. Greene, 527 U.S. 263, 281-82 (1999)).
The Court of Appeal determined the trial court did not violate Brady in failing to provide the defense with information about the liquor store owner, Singh:
People v. Cross, (F069258) (Cal. App. 5th Oct. 5, 2016), at 8-15.
As outlined above, there are three components of a Brady violation: "(1) the evidence at issue is `favorable to the accused, either because it is exculpatory, or because it is impeaching'; (2) the State suppressed the evidence, `either willfully or inadvertently'; and (3) `prejudice . . . ensued.'" Skinner, 562 U.S. at 536 (quoting Strickler, 527 U.S. at 281-82). Assuming the second component has been demonstrated, Petitioner must satisfy the other two components.
The evidence at issue, that Singh was the subject of a 2014 sting operation, was "favorable" to Petitioner, because evidence impeaching the testimony of a government witness falls within the Brady rule. United States v. Brumel-Alvarez, 991 F.2d 1452, 1458) (9th Cir. 1992) ("Evidence impeaching the testimony of a government witness falls within the Brady rule when the reliability of the witness may be determinative of a criminal defendant's guilt or innocence.") (citing Giglio v. United States, 405 U.S. 150, 154 (1972)). Respondent does not appear to dispute that the evidence was "favorable" to Petitioner; consequently, Petitioner also satisfies the first Brady component.
Respondent disputes the third Brady component, contending that the information regarding Singh was not material, "because it did not `put the whole case in a different light as to undermine the confident in the outcome.'" (Doc. 12 at 16.) (quoting Kyler v. Whitley, 514 U.S. 419, 434-35 (1995)).
The Court agrees with Respondent's assessment that the information that Singh was the subject of a sting operation was not material. Indeed, the Supreme Court has stated it "do[es] not. . . automatically require a new trial whenever `a combing of the prosecutor's files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict.'" Bagley, 473 U.S. 667, 677 (quoting Giglio, 405 U.S. at 154).
Evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Bagley, 473 U.S. at 682. Here, the jury heard about Singh's inconsistent statements regarding the robberies and his two convictions for selling tobacco to a minor in 2008 and 2012. Cross, (F069258), at 14. Further, the defense contested Singh's credibility by theorizing he lied to the 911 dispatcher about Beasley having a firearm on October 10, 2013, in order to be considered a higher priority to police officers. Id.
Evidence that Singh was the subject of a sting operation on the suspicion that he was selling stolen liquor would have highlighted Singh's untruthfulness. However, the additional evidence of Singh's dishonest nature would not have affected the jury when this had been firmly established through the other evidence presented at trial. This withheld evidence did not provide "the defense with a new and different ground of impeachment." Benn v. Lambert, 283 F.3d 1040, 1056 (9th Cir. 2002). Instead, the withheld evidence was cumulative of the evidence presented at trial. For the forgoing reasons, the Court recommends denying Petitioner's claim.
A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition, but may only appeal in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides:
If a court denies a habeas petition, the court may only issue a certificate of appealability "if jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). Although the petitioner is not required to prove the merits of his case, he must demonstrate "something more than the absence of frivolity or the existence of mere good faith on his. . . part." Miller-El, 537 U.S. at 338.
Reasonable jurists would not find the Court's determination that Petitioner is not entitled to federal habeas corpus relief to be debatable or wrong, or conclude that the issues presented required further adjudication. Accordingly, the Court recommends declining to issue a certificate of appealability.
Based on the foregoing, the undersigned recommends that the Court deny the Petition for writ of habeas corpus with prejudice and decline to issue a certificate of appealability.
These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C § 636(b)(1). Within
