EDMUND F. BRENNAN, Magistrate Judge.
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges a judgment of conviction entered against him on January 20, 2009 in the Sacramento County Superior Court on two counts of attempted murder, with sentence enhancements for committing the offenses in association with a criminal street gang and use of a weapon. He seeks federal habeas relief on the following grounds: (1) the trial court violated his right to due process in admitting evidence to support the gang enhancement allegation; (2) the trial court violated his right to due process in refusing to bifurcate the gang enhancement allegation from the attempted murder charges; (3) the trial court violated his right to due process in failing to sever his trial from that of his co-defendant; (4) his right to a fair trial was violated by prosecutorial misconduct; and (5) the cumulative effect of errors at his trial violated his right to due process. Upon careful consideration of the record and the applicable law, it is recommend that petitioner's application for habeas corpus relief be denied.
In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:
ECF No. 16-1 at 2-8.
After the California Court of Appeal affirmed his judgment of conviction, petitioner filed a petition for rehearing in the Court of Appeal. Resp't's Lodg. Doc. 5. On September 21, 2011, the Court of Appeal summarily denied that petition. Resp't's Lodg. Doc. 6. Petitioner subsequently filed a petition for review in the California Supreme Court. Resp't's Lodg. Doc. 7. That petition was also summarily denied. Resp't's Lodg. Doc. 8.
On July 13, 2013, petitioner filed a petition for writ of habeas corpus in the Sacramento County Superior Court. Resp't's Lodg. Doc. 9. On August 23, 2012, the Superior Court denied that petition in a reasoned decision on the merits of petitioner's claims. Resp't's Lodg. Doc. 10. On November 21, 2012, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal. Resp't's Lodg. Doc. 11. That petition was summarily denied. Resp't's Lodg. Doc. 12. On March 7, 2013, petitioner filed a petition for writ of habeas corpus in the California Supreme Court. Resp't's Lodg. Doc. 13. On May 1, 2013, the Supreme Court denied that petition with a citation to In re Waltreus, 62 Cal.2d 218, 225 (1965) (habeas corpus cannot serve as a second appeal). Resp't's Lodg. Doc. 14.
Petitioner filed his federal habeas corpus petition in this court on June 17, 2013.
An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S. ___, ___, 131 S.Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).
Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:
For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the last reasoned state court decision. Thompson v. Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, ___ U.S. ___, 132 S.Ct. 38 (2011); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Circuit court precedent "may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)). However, circuit precedent may not be "used to refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has not announced." Marshall v. Rodgers, 133 S.Ct. 1446, 1450 (2013) (citing Parker v. Matthews, 132 S.Ct. 2148, 2155 (2012) (per curiam)). Nor may it be used to "determine whether a particular rule of law is so widely accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court, be accepted as correct. Id. Further, where courts of appeals have diverged in their treatment of an issue, it cannot be said that there is "clearly established Federal law" governing that issue. Carey v. Musladin, 549 U.S. 70, 77 (2006).
A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640 (2003). Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case.
If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").
The court looks to the last reasoned state court decision as the basis for the state court judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). "When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Richter, 131 S. Ct. at 784-85. This presumption may be overcome by a showing "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). Similarly, when a state court decision on a petitioner's claims rejects some claims but does not expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that the federal claim was adjudicated on the merits. Johnson v. Williams, ___ U.S. ___, ___, 133 S.Ct. 1088, 1091 (2013).
Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes, 336 F.3d at 853. Where no reasoned decision is available, the habeas petitioner still has the burden of "showing there was no reasonable basis for the state court to deny relief." Richter, 131 S. Ct. at 784.
A summary denial is presumed to be a denial on the merits of the petitioner's claims. Stancle v. Clay, 692 F.3d 948, 957 & n. 3 (9th Cir. 2012). While the federal court cannot analyze just what the state court did when it issued a summary denial, the federal court must review the state court record to determine whether there was any "reasonable basis for the state court to deny relief." Richter, 131 S. Ct. at 784. This court "must determine what arguments or theories ... could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court." Id. at 786. The petitioner bears "the burden to demonstrate that `there was no reasonable basis for the state court to deny relief.'" Walker v. Martel, 709 F.3d 925, 939 (9th Cir. 2013) (quoting Richter, 131 S. Ct. at 784).
When it is clear, however, that a state court has not reached the merits of a petitioner's claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).
Petitioner's first claim for relief is that the trial court's admission of evidence regarding gang culture and activities to support the attempted murder charges and the gun enhancement allegations rendered his trial fundamentally unfair, in violation of his Fourteenth Amendment right to due process. ECF No. 10 at 27-29. Petitioner points out that the California Court of Appeal reversed his conviction on the gang enhancement allegations. He states that he is not a gang member.
Petitioner also argues that the evidence supporting the gang enhancement allegations should not have been admitted into evidence because it was insufficient to demonstrate that NHGC was a "street gang" and had the unfair effect of providing support for the prosecutor's argument that the shootings were motivated by gang membership and not by the self-defense. He argues, "the evidence used to prove the gang enhancement is prejudicial, and denies him a fair oppurtunity [sic] for the jury to assess if he acted with criminal intent or for the purpose of self-defense/defense of others." Id. In essence, petitioner is arguing that because the gang evidence was ultimately unable to support the gang enhancement allegation, in hindsight it was unfair to admit it for any purpose.
The California Court of Appeal addressed these arguments as part of its analysis of petitioner's claim that the trial court violated his right to a fair trial in refusing to bifurcate the gang allegations from the attempted murder charges. That court concluded that the gang evidence was relevant to the substantive crimes, as well as to other issues at trial such as the "thoughts and actions of all the participants involved," and was therefore properly admitted even though the prosecutor ultimately failed to prove that NHGC fell within the legal definition of a "street gang." Resp't's Lodg. Doc. 1 at 15-16.
In his petition for a writ of habeas corpus filed in the California Superior Court, petitioner claimed, as he does in the instant petition, that the admission into evidence of the gang-related evidence violated his right to a fair trial, especially in light of the fact that his conviction on the gang enhancement was later reversed by the Court of Appeal. The Superior Court denied that claim, reasoning as follows:
ECF No. 16-2 at 2-4.
Denial of due process in a criminal trial "is the failure to observe that fundamental fairness essential to the very concept of justice. . . . [W]e must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial." Lisenba v. California, 314 U.S. 219, 236 (1941). In federal court, a writ of habeas corpus will be granted for an erroneous admission of evidence "only where the `testimony is almost entirely unreliable and . . . the factfinder and the adversary system will not be competent to uncover, recognize, and take due account of its shortcomings.'" Mancuso v. Olivarez, 292 F.3d 939, 956 (9th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S. 880, 899 (1983)). Evidence violates due process only if "there are no permissible inferences the jury may draw from the evidence." Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991). Evidence must "be of such quality as necessarily prevents a fair trial." Id. (quoting Kealohapauole v. Shimoda, 800 F.2d 1463 (9th Cir. 1986)).
Even so, as the Ninth Circuit has observed:
Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009). Therefore, "under AEDPA, even clearly erroneous admissions of evidence that render a trial fundamentally unfair may not permit the grant of federal habeas corpus relief if not forbidden by `clearly established Federal law,' as laid out by the Supreme Court." Id. See also Greel v. Martel, No. 10-16847, 472 F. App'x 503, 504, 2012 WL 907215, *1 (9th Cir. Mar. 19, 2012) ("There is likewise no clearly established federal law that admitting prejudicial evidence violates due process.").
In light of the authorities cited above, the state court's rejection of petitioner's claim that the trial court violated his right to due process in admitting evidence of gang activities to support the charges against petitioner and Taylor does not support habeas relief under AEDPA. There is no "clearly established federal law" that the federal constitution is violated by the admission into evidence of gang affiliation in a case where motivation is at issue and gang evidence is relevant to other issues in the case. Moses v. Payne, 555 F.3d 742, 761 (9th Cir. 2009) (rejecting petitioner's claim that the trial court violated his right to due process in allowing the opinion testimony because it improperly intruded upon the province of the jury).
This court also concludes that the admission of the gang evidence did not render petitioner's trial fundamentally unfair. The gang enhancement with which petitioner was charged provides that additional punishment shall be imposed on:
Cal. Penal Code § 186.22(b)(1). The prosecution's theory of guilt against petitioner was that, while he was not a gang member, his actions were performed "in association" with gang member Taylor. Reporter's Transcript on Appeal (RT) at 50, 74. Evidence regarding the behavior patterns of gang members and the possible link between petitioner's actions and the gang affiliation of Taylor was therefore relevant to the prosecutor's entire theory of the case. As noted by the California Court of Appeal, this evidence was also relevant to explain the actions of all the participants in the shooting. That petitioner was acting in concert with Taylor in order to advance the objectives of Taylor's gang, whether or not that gang was technically a "street gang," was a permissible inference the jury could draw from the gang evidence. See Jammal, 926 F.2d at 920. Accordingly, the evidence was properly admitted for this purpose. The court also notes that any prejudice to petitioner from the admission of the gang-related evidence was mitigated by the following jury instructions:
RT at 816.
Id. at 792. It is presumed that the jurors followed these instructions. Richardson v. Marsh, 481 U.S. 200, 211 (1987).
Petitioner has also failed to demonstrate that the evidence relating to gang activity prevented the jurors from considering and evaluating his defense of self-defense on its own merits. Petitioner's speculation to that effect, without more, is insufficient to establish entitlement to federal habeas relief.
This court may not second-guess state evidentiary rulings, except for the limited purpose of ascertaining whether the admission of evidence was so lacking in a nexus to the issues of the case that the trial was rendered fundamentally unfair, see Jammal, 926 F.2d at 920, Dowling v. United States, 493 U.S. 342, 352-53 (1990), Butcher v. Marquez, 758 F.2d 373, 378 (9th Cir. 1985), or that the evidence bore no relationship to the issues being tried, see Dawson v. Delaware, 503 U.S. 159, 163-65 (1992). Neither exception applies to the admission of the gang expert testimony in this case. Accordingly, petitioner is not entitled to federal habeas relief on this claim.
In petitioner's next ground for relief, he claims that the trial court violated his right to due process when it denied his motion to bifurcate the trial of the gang enhancement allegations from the trial on the underlying attempted murder charges. ECF No. 10 at 30-32. He argues that he was "unable to have guilt or innocence determined on attempted murder without suspicion of it being gang related." Id. at 30. He explains:
Id. at 31. Petitioner also argues that the trial court's refusal to bifurcate the trial violated the doctrine of "retroactive misjoinder." Id.
The California Court of Appeal rejected these arguments, reasoning as follows:
ECF No. 16-1 at 16-17.
Petitioner also raised this claim in his subsequently filed state habeas petition. The California Superior Court rejected the claim on procedural grounds and on the merits, reasoning as follows:
ECF No. 16-2 at 4.
The United States Supreme Court has not determined that a criminal defendant has a federal constitutional right to bifurcation. See Spencer v. Texas, 385 U.S. 554, 565-66 (1967) ("Two-part jury trials are rare in our jurisprudence; they have never been compelled by this Court as a matter of constitutional law, or even as a matter of federal procedure"); Marshall v. Lonberger, 459 U.S. 422, 438 n.6 (1983) (reaffirming Spencer). "The simultaneous trial of more than one offense must actually render petitioner's state trial fundamentally unfair and hence, violative of due process before relief pursuant to 28 U.S.C. § 2254 would be appropriate." Featherstone v. Estelle, 948 F.2d 1497, 1503 (9th Cir. 1991) (internal quotation marks and citation omitted). See also United States v. Lane, 474 U.S. 438, 446 n.8 (1986) ("misjoinder would rise to the level of a constitutional violation only if it results in prejudice so great as to deny a defendant his Fifth Amendment right to a fair trial"); Comer v. Schiro, 480 F.3d 960, 985 (9th Cir. 2007) (in the context of the joinder of counts at trial, habeas relief will not be granted unless the joinder actually rendered petitioner's state trial fundamentally unfair and therefore violative of due process).
"In evaluating prejudice, the [federal habeas court] focuses particularly on cross-admissibility of evidence and the danger of `spillover' from one charge to another, especially where one charge or set of charges is weaker than another." Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2003). Undue prejudice also exists "whenever joinder of counts allows evidence of other crimes to be introduced in a trial where the evidence would otherwise be inadmissible." Sandoval v. Calderon, 241 F.3d 765, 772 (9th Cir. 2000). Petitioner bears the burden of proving that he is entitled to federal habeas relief on this ground. Davis, 384 F.3d at 638.
As the California Court of Appeal and the trial court correctly observed, in this case the gang evidence was admissible to show the possible intent and motive of all participants in the events and was integral to the prosecution theory of the case. This fact reduced the possibility of prejudice. See Comer, 480 F.3d at 985 (cross-admissibility of evidence significantly reduces potential prejudice). Further, as noted by the California Court of Appeal, the gang evidence served to explain otherwise inexplicable events and actions and put the events in perspective. See United States v. Takahashi, 205 F.3d 1161, 1164 (9th Cir. 2000) (gang evidence admissible when relevant to a material issue). The fact that the prosecutor conceded petitioner was not a gang member, in addition to the jury instructions on the limited purpose of the gang evidence, lessened any potential prejudice to petitioner from the admission of this evidence. For these reasons, petitioner has not established that the state trial court's refusal to bifurcate the trial of the gang allegations from the underlying charges rendered his trial fundamentally unfair. Davis, 384 F.3d at 638. Thus, federal habeas relief is not warranted on this claim. See Cisneros v. Harrington, Nos. CV 10-574-DMG (OP) & CV 09-6716 DMG (OP), 2012 WL 3150610, at *14-15 (C.D. Cal. Jan. 31, 2012) (rejecting similar claim to federal habeas relief).
In his next claim for relief, petitioner argues that the trial court's failure to sever his trial from Taylor's trial violated his right to due process because of "the disparity of the weight of evidence and guilt by association, causing confusion and prejudice." ECF No. 10 at 33. He contends that there was no evidence demonstrating "why or how petitioner's shooting (which was claimed to had been done in self-defense) supports Taylor's motive without using guilt by association." ECF No. 20 at 13.
The California Court of Appeal rejected these arguments, reasoning as follows:
ECF No. 16-1 at 17-18.
Petitioner also raised his claim regarding trial severance in his subsequently filed state habeas petition. The California Superior Court rejected the claim on procedural grounds and on the merits, reasoning as follows:
ECF No. 16-2 at 5.
A court may grant habeas relief based on a state court's decision to deny a motion for severance only if the joint trial was so prejudicial that it denied a petitioner his right to a fair trial. Zafiro v. United States, 506 U.S. 534, 538-39 (1993) (court must decide if "there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence"). Petitioner bears the burden of proving that the denial of severance rendered his trial fundamentally unfair, Grisby v. Blodgett, 130 F.3d 365, 370 (9th Cir. 1997), and must establish that prejudice arising from the failure to grant a severance was so "clear, manifest, and undue" that he was denied a fair trial. Lambright v. Stewart, 191 F.3d 1181, 1185 (9th Cir. 1999) (quoting United States v. Throckmorton, 87 F.3d 1069, 1071-72 (9th Cir. 1996)).
On habeas review, federal courts neither depend on the state law governing severance, Grisby, 130 F.3d at 370 (citing Hollins v. Dep't of Corrections, State of Iowa, 969 F.2d 606, 608 (8th Cir. 1992)), nor consider procedural rights to a severance afforded to criminal defendants in the federal criminal justice system. Id. Rather, the relevant question is whether the state proceedings satisfied due process. Id.; see also Cooper v. McGrath, 314 F.Supp.2d 967, 983 (N.D. Cal. 2004).
Petitioner's claim in this regard involves essentially the same considerations as the two claims discussed above. The outcome is dependent on the level of prejudice to petitioner resulting from the introduction of gang-related evidence to support the charges against petitioner and Taylor. For the reasons discussed above and in the opinions of the California courts with respect to these claims, the trial court did not violate petitioner's right to due process in failing to sever his trial from Taylor's trial. The evidence of gang affiliation would almost certainly have been admitted in a separate trial in order to explain the context in which the shooting occurred and all of the parties' possible motivations in acting as they did. In light of this, petitioner did not suffer undue prejudice from the joinder of his trial with Taylor's.
The decisions of the California Court of Appeal and California Superior Court with respect to this claim are not contrary to or an unreasonable application of United States Supreme Court authority. Accordingly, petitioner is not entitled to federal habeas relief.
In petitioner's next two grounds for relief, he claims that the prosecutor committed prejudicial misconduct in closing argument. After setting forth the applicable legal principles, the court will address these claims in turn below.
A criminal defendant's due process rights are violated when a prosecutor's misconduct renders a trial fundamentally unfair. Darden v. Wainwright, 477 U.S. 168, 181 (1986); Sassounian v. Roe, 230 F.3d 1097, 1106 (9th Cir. 2000). However, misconduct does not, per se, violate a petitioner's constitutional rights. Jeffries v. Blodgett, 5 F.3d 1180, 1191 (9th Cir. 1993) (citing Darden, 477 U.S. at 181, and Campbell v. Kincheloe, 829 F.2d 1453, 1457 (9th Cir. 1987)). "The touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor." Trillo v. Biter, 754 F.3d 1085, 1090 (9th Cir. 2014) (quoting Smith v. Phillips, 455 U.S. 209, 219 (1982)). Prosecutorial misconduct violates due process when it has a "substantial and injurious effect or influence in determining the jury's verdict." See Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996) (quoting O'Neal v. McAninch, 513 U.S. 432, 443 (1995)). It is the petitioner's burden to state facts that point to a real possibility of constitutional error in this regard. See O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990).
In considering claims of prosecutorial misconduct involving allegations of improper argument, the court must examine the likely effect of the statements in the context in which they were made and determine whether the comments so infected the trial with unfairness as to render the resulting conviction a denial of due process. Darden, 477 U.S. at 181-83; Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974); Turner v. Calderon, 281 F.3d 851, 868 (9th Cir. 2002). In fashioning closing arguments, prosecutors are allowed "reasonably wide latitude," United States v. Birges, 723 F.2d 666, 671-72 (9th Cir. 1984), and are free to argue "reasonable inferences from the evidence," United States v. Gray, 876 F.2d 1411, 1417 (9th Cir. 1989). See also Ducket v. Godinez, 67 F.3d 734, 742 (9th Cir. 1995). "[Prosecutors] may strike `hard blows,' based upon the testimony and its inferences, although they may not, of course, employ argument which could be fairly characterized as foul or unfair." United States v. Gorostiza, 468 F.2d 915, 916 (9th Cir. 1972). "[I]t `is not enough that the prosecutors' remarks were undesirable or even universally condemned.'" Darden, 477 U.S. at 181 (citation omitted). The issue is whether the "remarks, in the context of the entire trial, were sufficiently prejudicial to violate [petitioner's] due process rights." Donnelly, 416 U.S. at 639. However, "[a]s a general rule, a prosecutor may not express his opinion of the defendant's guilt." United States v. Molina, 923 F.2d 1440, 1444 (9th Cir. 1991).
It is improper for a prosecutor to vouch for the credibility of a government witness. United States v. Hermanek, 289 F.3d 1076, 1098 (9th Cir. 2002). See also United States v. Young, 470 U.S. 1, 7 n.3 (1985). "Vouching occurs when a prosecutor `place[s] the prestige of the government behind the witness or . . . indicate[s] that information not presented to the jury supports the witness's testimony." United States v. Rangel-Guzman, 752 F.3d 1222, 1224 (9th Cir. 2014) (quoting United States v. Roberts, 618 F.2d 530, 533 (9th Cir. 1980)); United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993) (same). "Vouching typically involves the prosecution bolstering the testimony of its own witness." United States v. Wright, 625 F.3d 583, 610 (9th Cir. 2010) (quoting United States v. Nobari, 574 F.3d 1065, 1078 (9th Cir. 2009)). Vouching is "especially problematic in cases where the credibility of the witness is crucial." Necoechea, 986 F.2d at 1276. Errors in allowing vouching are subject to harmless error analysis. United States v. Young, 470 U.S. 1, 13 n.10 (1985).
Petitioner claims that the prosecutor improperly expressed his personal opinion of petitioner's guilt when he informed the jurors that in order to "do the right thing," they should convict petitioner of the charged crimes. ECF No. 10 at 39-40. Petitioner specifically points to the following portions of the prosecutor's closing argument:
RT at 1558-59.
Petitioner argues, "the prosecution telling the jurors to convict petitioner, because he's being charged, and is therefore guilty, and if they want to do the right thing by their family, violated petitioner's constitutional rights." ECF No. 10 at 40. He contends that the prosecutor's remarks were essentially an expression of his personal belief that petitioner was guilty of the charged crimes. Id. He argues that the prosecutor's argument improperly urged the jurors to convict him of the charged crimes based on emotional factors that had nothing to do with the evidence introduced at trial. ECF No. 20 at 15. Petitioner also argues that he suffered prejudice from the prosecutor's improper argument because: (1) this was a "close case;" (2) substantial evidence showed petitioner acted "in a reasonable manner defending himself from the vigilante acts of O'Neal;" and (3) O'Neal's explanation of his actions was "inconsistent." ECF No. 10 at 40. In the traverse, petitioner argues that his trial and appellate counsel rendered ineffective assistance in failing to object to these comments by the prosecutor. ECF No. 20 at 15
Petitioner raised this claim in his habeas petition filed in the California Superior Court. The Superior Court rejected petitioner's arguments, reasoning as follows:
ECF No. 16-2 at 5.
Respondent argues that the California Supreme Court's citation to In re Dixon constitutes a state procedural bar which precludes this court from addressing the merits of this claim of ineffective assistance of counsel. ECF No. 16 at 12.
As a general rule, "[a] federal habeas court will not review a claim rejected by a state court `if the decision of [the state] court rests on a state law ground that is independent of the federal question and adequate to support the judgment.'" Walker v. Martin, 562 U.S. ___, ___, 131 S.Ct. 1120, 1127 (2011) (quoting Beard v. Kindler, 558 U.S. ___, ___, 130 S.Ct. 612, 615 (2009)). See also Maples v. Thomas, ___ U.S. ___, ___, 132 S.Ct. 912, 922 (2012); Greenway v. Schriro, 653 F.3d 790, 797 (9th Cir. 2011); Calderon v. United States District Court (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)). However, a reviewing court need not invariably resolve the question of procedural default prior to ruling on the merits of a claim. Lambrix v. Singletary, 520 U.S. 518, 524-25 (1997); see also Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002): ("Procedural bar issues are not infrequently more complex than the merits issues presented by the appeal, so it may well make sense in some instances to proceed to the merits if the result will be the same"); Busby v. Dretke, 359 F.3d 708, 720 (5th Cir. 2004) (noting that although the question of procedural default should ordinarily be considered first, a reviewing court need not do so invariably, especially when the issue turns on difficult questions of state law). Thus, where deciding the merits of a claim proves to be less complicated and less time-consuming than adjudicating the issue of procedural default, a court may exercise discretion in its management of the case to reject the claims on their merits and forgo an analysis of procedural default. See Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998); Batchelor v. Cupp, 693 F.2d 859, 864 (9th Cir.1982). Under the circumstances presented here, the claim of prosecutorial misconduct here can be resolved more easily by addressing it on the merits. Accordingly, this court will assume that this claim is not defaulted and will address it on the merits.
The prosecutor's closing argument, wherein he urged the jurors to find petitioner guilty because it was the "right thing to do," did not render petitioner's trial fundamentally unfair. The prosecutor did not misstate any evidence or implicate important constitutional rights, nor did he express his personal belief that petitioner was guilty. See Darden, 477 U.S. at 181 n.12 (prosecutorial closing argument did not deprive petitioner of a fair trial where it "did not manipulate or misstate the evidence, nor did it implicate other specific rights of the accused such as the right to counsel or the right to remain silent"). Cf. United States v. Young, 470 U.S. 1, 16 (1985) (prosecutor's argument during rebuttal in which he stated his opinion that the defendant was guilty constituted error but did not unfairly prejudice the jury); United States v. Bess, 593 F.2d 749 (6th Cir. 1979) (prosecutor's statement to the effect that the United States would not have indicted defendant if it had not believed he was guilty and that he personally believed beyond a reasonable doubt that defendant was guilty amounted to reversible error where case was close and credibility was the key issue). The idea that the prosecution has charged a person with a crime because it believes this is the right thing to do is hardly novel. In any event, the trial court instructed the jurors that their decision was to be made on the basis of the evidence alone, that the arguments of counsel were not evidence, and that they were not to be influenced by sympathy or prejudice. Clerk's Transcript on Appeal (CT) at 771, 774. Considering the record as a whole, this court concludes there is no reasonable possibility the prosecutor's remarks could have had a substantial and injurious effect or influence on the verdict in this case. Accordingly, petitioner is not entitled to relief on this claim of prosecutorial misconduct.
Petitioner has also failed to demonstrate that his trial and appellate counsel rendered ineffective assistance in failing to object to the prosecutor's closing remarks. A trial attorney's failure to object to a prosecutor's closing argument, unless the argument grossly mischaracterizes the record, does not constitute ineffective assistance of counsel. Cunningham v. Wong, 704 F.3d 1143, 1159 (9th Cir. 2013); Necoechea, 986 F.2d at 1276; United States v. Daas, 198 F.3d 1167, 1179 (9th Cir. 1999). The prosecutor's statements in this case did not mischaracterize the record, nor did they render petitioner's trial fundamentally unfair. Under these circumstances, petitioner's trial counsel did not provide ineffective assistance in failing to object. Nor did petitioner's appellate counsel render ineffective assistance in failing to raise this claim on appeal. For the reasons discussed above, there is no reasonable probability petitioner would have prevailed on appeal on this issue. Accordingly, petitioner is not entitled to relief on these claims.
In the traverse, petitioner argues that the prosecutor committed misconduct in closing argument by vouching for the veracity and credibility of O'Neal. ECF No. 20 at 14. He specifically objects to the following remarks by the prosecutor:
RT at 1430-31.
Id. at 1557.
Petitioner raised this claim of prosecutorial misconduct on direct appeal. Resp't's Lodg. Doc. 2 at 95-100. The California Court of Appeal denied the claim, reasoning as follows:
ECF No. 16-1 at 19-21.
Petitioner raised this claim of prosecutorial misconduct again in his habeas petition filed in the California Superior Court. The Superior Court denied the claim, reasoning as follows:
ECF No. 16-2 at 5.
As set forth above, the California Court of Appeal concluded that petitioner forfeited this claim of prosecutorial misconduct by failing to make a contemporaneous objection to the prosecutor's statements. Respondent argues that the state court's finding of waiver constitutes a state procedural bar precluding this court from addressing the merits of the claim. ECF No. 16 at 10-11.
As explained above, state courts may decline to review a claim based on a procedural default and will generally not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment. Martin, 131 S. Ct. at 1127. A state rule is only "adequate" if it is "firmly established and regularly followed." Bean, 96 F.3d at 1129 (quoting Ford v. Georgia, 498 U.S. 411, 424 (1991)); Bennett v. Mueller, 322 F.3d 573, 583 (9th Cir. 2003) ("[t]o be deemed adequate, the state law ground for decision must be well-established and consistently applied.") The state rule must also be "independent" in that it is not "interwoven with the federal law." Park v. California, 202 F.3d 1146, 1152 (9th Cir. 2000) (quoting Michigan v. Long, 463 U.S. 1032, 1040-41 (1983)). Even if the state rule is independent and adequate, the claims may be heard if the petitioner can show: (1) cause for the default and actual prejudice as a result of the alleged violation of federal law; or (2) that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 749-50.
Respondent has met his burden of adequately pleading an independent and adequate state procedural ground as an affirmative defense. See Bennett, 322 F.3d at 586. Petitioner does not deny that his trial counsel did not raise a contemporaneous objection to the prosecutor's closing remarks about O'Neal. Although the state appellate court addressed petitioner's claim of prosecutorial misconduct on the merits, it also expressly held that the claim was waived on appeal because of defense counsel's failure to object. Petitioner has failed to meet his burden of asserting specific factual allegations that demonstrate the inadequacy of California's contemporaneous-objection rule as unclear, inconsistently applied or not well-established, either as a general rule or as applied to him. Bennett, 322 F.3d at 586; Melendez v. Pliler, 288 F.3d 1120, 1124-26 (9th Cir. 2002). Petitioner's claim therefore appears to be procedurally barred. See Coleman, 501 U.S. at 747; Harris v. Reed, 489 U.S. 255, 264 n.10 (1989); Paulino v. Castro, 371 F.3d 1083, 1092-93 (9th Cir. 2004).
Even if petitioner's claim of prosecutorial misconduct is not procedurally barred, it lacks merit. As noted by the California Court of Appeal, read in the context of the entire closing argument the prosecutor was arguing that it was debatable whether any of the participants in the shooting could legitimately claim they were acting in self-defense. He conceded that the jury "might not like" what O'Neal did in this case. Although he indicated that O'Neal would not likely be prosecuted for his actions, he acknowledged that O'Neal's behavior could also give rise to possible prosecution. The prosecutor was not going so far as to argue that O'Neal's testimony was entirely credible, that his actions were lawful, or that he had any extra-record knowledge of O'Neal's veracity. See Necoechea, 986 F.2d at 1278 (among the factors a court must consider in determining whether there was vouching is "how much the vouching implies that the prosecutor has extra-record knowledge of or the capacity to monitor the witness's truthfulness"). He was simply asking the jurors to view the actions of the defendants without regard to the criminal culpability of O'Neal.
Under the circumstances presented here, a reasonable jurist could conclude that the prosecutor's remarks did not undermine the fundamental fairness of petitioner's trial or contribute to a miscarriage of justice. Darden, 477 U.S. at 179-82. But cf. United States v. McKoy, 771 F.2d 1207, 1210 (9th Cir. 1985) (prosecutor's statements that he believed he had an "extremely strong case" against defendants constituted impermissible vouching). For this reason, the decision of the California Court of Appeal and California Superior Court denying this claim of prosecutorial misconduct is not contrary to or an unreasonable application of federal law, as determined by the Supreme Court of the United States. Accordingly, petitioner is not entitled to federal habeas relief on this claim.
In his final ground for relief, petitioner claims that the cumulative effect of the errors complained of above violated his right to due process and a fair trial. ECF No. 10 at 41-42. He argues that these errors "ultimately had a substantial and injurious effect on the jury's verdict." Id. at 41.
The California Court of Appeal rejected these arguments, reasoning as follows:
ECF No. 16-1 at 21. Petitioner raised this claim again in his habeas petition filed in the California Superior Court. The Superior Court denied the claim as well, with the following reasoning:
ECF No. 16-2 at 6.
The cumulative error doctrine in habeas recognizes that, "even if no single error were prejudicial, where there are several substantial errors, `their cumulative effect may nevertheless be so prejudicial as to require reversal.'" Killian v. Poole, 282 F.3d 1204, 1211 (9th Cir. 2002) (quoting United States v. de Cruz, 82 F.3d 856, 868 (9th Cir. 1996)). However, where there is no single constitutional error existing, nothing can accumulate to the level of a constitutional violation. See Fairbank v. Ayers, 650 F.3d 1243, 1257 (9th Cir. 2011) ("[B]ecause we hold that none of Fairbank's claims rise to the level of constitutional error, `there is nothing to accumulate to a level of a constitutional violation.'") (citation omitted); Hayes v. Ayers, 632 F.3d 500, 524 (9th Cir. 2011) ("Because we conclude that no error of constitutional magnitude occurred, no cumulative prejudice is possible."). "The fundamental question in determining whether the combined effect of trial errors violated a defendant's due process rights is whether the errors rendered the criminal defense `far less persuasive,' Chambers v. Mississippi, 410 U.S. 284, 294 (1973), and thereby had a `substantial and injurious effect or influence' on the jury's verdict." Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).
This court has addressed petitioner's claims of error and has concluded that no error of constitutional magnitude occurred. There is also no evidence that an accumulation of errors rendered petitioner's trial fundamentally unfair. Accordingly, petitioner is not entitled to relief on his claim that cumulative error violated his right to due process.
For the foregoing reasons, IT IS HEREBY RECOMMENDED that petitioner's application for a writ of habeas corpus be denied.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen days after service of the objections. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In his objections petitioner may address whether a certificate of appealability should issue in the event he files an appeal of the judgment in this case. See Rule 11, Rules Governing Section 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant).
ECF No. 16-1 at 8.
