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 May 5, 2009 in the Tehama County Superior Court on charges of shooting at an inhabited dwelling, permitting another to discharge a firearm from a vehicle, and participating in a criminal street gang. The offenses were committed when he was 18 years old. People v. Mullen, No. C062851, 2012 WL 758145, at **1 (Cal.App.3d Dist. March 8, 2012). The trial court sentenced him to an indeterminate term of 15 years to life. Id. He seeks federal habeas relief on the following grounds: (1) the trial court violated his federal constitutional rights in denying his motion to suppress his confession; (2) the trial court's improper exclusion of evidence violated his right to due process and to present a complete defense; and (3) the trial court's improper admission of evidence that he refused to consent to a search of his home and his vehicle violated his Fifth Amendment right against self-incrimination. Upon careful consideration of the record and the applicable law, it is recommended 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In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the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:
People v. Mullen, 2012 WL 758145, at **1-4.
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).
In petitioner's first ground for relief, he claims that his statements to police should have been suppressed because they were induced by an improper promise of leniency. ECF No. 1 at 4.
Id. at 7. Petitioner argues, in effect, that Sergeant Kain improperly used petitioner's parents as agents of the police to obtain a coerced confession from him. Id
The California Court of Appeal rejected petitioner's challenges to the admission of his statements to police. The court recited the following background:
Mullen, 2012 WL 758145, at **5-6.
After discussing the applicable standards for claims of an involuntary statement(s), the state appellate court held that record did not show under the totality of the circumstances that his statements were in voluntary. Of particular significance, that court found Kain's statements to either the defendant or his parents did not link admission to a crime with a guarantee of lenient sentencing or favorable treatment. Quoting state law precedents, that court noted that:
Mullen, 2012 WL 758145, at **5-7.
The Fourteenth Amendment to the United States Constitution demands that confessions be made voluntarily. See Lego v. Twomey, 404 U.S. 477, 483-85 (1972). In determining whether a confession is voluntary, "the question is `whether the defendant's will was overborne at the time he confessed.'" Haynes v. Washington, 373 U.S. 503, 513 (1963); see also Amaya-Ruiz v. Stewart, 121 F.3d 486, 494 (9th Cir. 1997) (the test is "whether . . . the government obtained the statement by physical or psychological coercion or by improper inducement so that the suspect's will was overborne."). "The line of distinction is that at which governing self-direction is lost and compulsion, of whatever nature or however infused, propels or helps to propel the confession." Culombe v. Connecticut, 367 U.S. 568, 602 (1961). "Under the Fourteenth Amendment, a confession is involuntary only if the police use coercive means to undermine the suspect's ability to exercise his free will." Pollard v Galaza, 290 F.3d 1030, 1033 (9th Cir. 2002)
"There is no `talismanic definition of `voluntariness' `that is `mechanically applicable.'" Clark v. Murphy, 331 F.3d 1062, 1072 (9th Cir. 2003), overruled in part on other grounds by Lockyer v. Andrade, 538 U.S. 63 (2003) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 224 (1973)). Rather, voluntariness is to be determined in light of the totality of the circumstances. See Miller v. Fenton, 474 U.S. 104, 112 (1985). This includes consideration of both the characteristics of the petitioner and the details of the interrogation. Schneckloth, 412 U.S. at 226. The court must examine "the factual circumstances surrounding the confession, assess [ ] the psychological impact on the accused, and evaluate [ ] the legal significance of how the accused reacted." Id. "Courts . . . often consider the following factors: the youth of the accused, his intelligence, the lack of any advice to the accused of his constitutional rights, the length of detention, the repeated and prolonged nature of the questioning, and the use of physical punishment such as the deprivation of food or sleep." United States v. Haswood, 350 F.3d 1024, 1027 (9th Cir. 2003).
"A confession is involuntary if coerced either by physical intimidation or psychological pressure." Haswood, 350 F.3d at 1027. Officials cannot extract a confession "by any sort of threats or violence, nor . . . by any direct or implied promises, however slight, nor by the exertion of any improper influence." Hutto, 429 U.S. at 30 (quoting Bram v. United States, 168 U.S. 532, 542-43 (1897)). False promises or threats may render a confession invalid. See, e.g., Lynumn v. Illinois, 372 U.S. 528, 534 (1963) (confession found to be coerced by officers' false statements that state financial aid for defendant's infant children would be cut off, and her children taken from her, if she did not cooperate); Rogers v. Richmond, 365 U.S. 534, 541-45 (1961) (defendant's confession was coerced when it was obtained in response to a police threat to take defendant's wife into custody); Spano v. New York, 360 U.S. 315, 323 (1959) (confession found to be coerced where police instructed a friend of the accused to falsely state that petitioner's telephone call had gotten him into trouble, that his job was in jeopardy and that loss of his job would be disastrous to his three children, his wife and his unborn child).
However, "misrepresentations made by law enforcement in obtaining a statement, while reprehensible, do[] not necessarily constitute coercive conduct." Pollard, 290 F.3d at 1034. Additionally, encouraging a suspect to tell the truth is not coercion. Amaya-Ruiz, 121 F.3d at 494. Nor is it coercive to recite potential penalties or sentences, including the potential penalties for lying to the interviewer. Haswood, 350 F.3d at 1029.
The trial testimony in this case reflects the following. Steven Turner, petitioner's stepfather, came to the police station twice on the morning after petitioner turned himself in because he was concerned that petitioner had not yet returned home. Reporter's Transcript on Appeal (RT) at 129. The second time Turner arrived at the police station, he had a conversation with Sergeant Kain. Id. at 114. He asked Kane why petitioner was still at the police station. Id. at 115. Kane responded that petitioner was facing a "significant period of time," and had "better think about cooperating." Id. at 114. He also told Mr. Turner that if petitioner cooperated, the District Attorney's office "may be more lenient towards him." Id. at 114, 15. Sergeant Kane explained that the police had a search warrant for petitioner's residence. Id. at 116. Turner agreed to accompany the police back to the residence. Id. at 116.
Sergeant Kain had a further conversation with petitioner's mother and stepfather at their home while the search warrant was being executed. Id. at 99. He told them that petitioner was involved in "a very serious matter." Id. He stated that in another similar case he worked on, the defendant "received a 40-year-to-life sentence." Id. at 104, 113. Sergeant Kain told petitioner's mother that they needed to get truthful responses from petitioner. Id. at 116. Kain did not recall telling petitioner's parents that petitioner was facing a 40 year sentence. Id. at 117. He stated, "I don't recall ever telling Mr. Mullen or any of his family members that he was going to get a definitive term such as 40 years." Id. at 125. Rather, according to Sergeant Kain, he told petitioner's parents that petitioner was "looking at some significant time in prison." Id. He also told them it would be in petitioner's "best interest" to cooperate. Id.
Steven Turner testified that Sergeant Kain told him petitioner could receive "20, 40 years." Id. at 131. Kane explained to Turner that "it was an offense that was really detrimental to [petitioner] and it was serious." Id. Sergeant Kane also told Turner that if he could encourage petitioner to cooperate with the police, "it would go in his favor." Id. Turner told Sergeant Kain that "if anybody could get [petitioner] to talk, it would be his mother." Id. at 132. He told Kain that he "could get [petitioner's mother] to come down and talk to [petitioner]." Id.
While the search warrant was being executed at her home, petitioner's mother asked Sergeant Kain if she could see her son at the police station. Id. at 138. Kain told her that petitioner was "looking at 40 years," and that if he cooperated "they may go easy on him." Id. at 139. When petitioner's mother spoke with petitioner at the police station, she strongly encouraged him to cooperate with the police because she believed what Officer Kain had told her. Id. at 141. Petitioner did not admit anything to his mother about his involvement in the crime. Id. Nor did petitioner's mother discuss petitioner's "cooperation or possible penalty" with Sergeant Kane. Id. at 142.
While petitioner's parents were speaking with petitioner at the police station, Sergeant Kain was monitoring the video of their conversation from another room. Id. at 94. He observed that petitioner's mother was "trying to elicit [petitioner] to give a truthful response." Id. at 117-18. When petitioner's parents were finished speaking with him, Sergeant Kain escorted them out of the room. Id. at 119. Upon resumption of the police interrogation, petitioner confessed to his role in the crimes.
After a review of the relevant record, it appears that petitioner's parents asked to speak with petitioner at the police station and were given permission by Sergeant Kane to do so. Kain told them or strongly implied that petitioner was facing a significant sentence, possibly 40 years, and that he "might" get more lenient treatment from the courts or the prosecutor if he cooperated with the police. Kain did not ask petitioner's parents to speak with petitioner, nor did he suggest what they should say to him. Petitioner's parents, believing that petitioner might get more lenient treatment if he cooperated with police, as Kain had told them, tried to talk petitioner into telling the truth. Petitioner did not make any incriminating statements to his parents, and there was no exchange of information between petitioner's parents and Sergeant Kain. However, after talking with his mother, petitioner decided to make a full confession to Sergeant Kain.
It would understate the matter to say that Kain did not suggest to petitioner's mother and stepfather, and through them to petitioner, that leniency in exchange for cooperation was a possibility. But as found by the state court, the record does not support a conclusion that Sergeant Kain linked confession to a crime to a promise of leniency. Nor does it support a conclusion that he was working directly with petitioner's parents to obtain information from petitioner, or that he directed their conversation with petitioner. While Kain may have facilitated the conversation between the defendant has his mother—indeed monitored it—in hopes of obtaining evidence, Kain's statements, either to the petitioner or to his parents, did not include any specific offers or promises to induce petitioner's statements. The distinction between a suggestion of possible leniency for cooperation and an actual offer or promise of leniency is significant. Kain told the parents that petitioner was facing serious charges carrying substantial penalties and that petitioner "might" receive more lenient treatment by the court or the prosecutor if he cooperated with police. He did not promise or assure such leniency. The parents may have been and likely were motivated by hopes inspired by Sergeant Kain's statements to urge petitioner to cooperate with the police, but Kain's actions, when viewed in their entirety, do not rise to the level of coercive police conduct. See Amaya-Ruiz, 121 F.3d at 494; see also Haswood, 350 F.3d at 1029.
Nor does the evidence reflect that Sergeant Kain used petitioner's parents as his agents to obtain incriminating statements from petitioner. Rather, Kain presented truthful information to the parents as to the seriousness of petitioner's trouble and the parents decided on their own to put pressure on petitioner to confess. Kain no doubt was eager to take advantage of that possibility, but the pressure to cooperate came from the parents. See Oregon v. Elstad, 470 U.S. 298, 305 (1985) (the Fifth Amendment privilege is not concerned "with moral and psychological pressures to confess emanating from sources other than official coercion"); Arizona v. Mauro, 481 U.S. 520, 528 (1987) (police did not interrogate defendant in violation of the Fifth and Fourteenth Amendments when they allowed him to speak with his wife in the presence of a police officer because there was "no evidence that the officers sent Mrs. Mauro in to see her husband for the purpose of eliciting incriminating statements"); United States v. Kimbrough, 477 F.3d 144, 151 (and cases cited therein) (4th Cir. 2007) (police did not subject defendant to improper interrogation when they brought defendant's mother to the basement to see drugs stored there because there was "no evidence in the record of a tacit agreement, discussion, or understanding between the police officers and defendant's mother that she would ask questions or attempt to elicit incriminating information").
Petitioner does not appear to be arguing that the treatment his parents received at the hands of the police violated their constitutional rights in any way. In any event, any such claim would fail. A defendant generally does not have standing to complain about violations of the rights of third parties, unless the government's investigative methods were "offensive to a civilized system of justice" or resulted in a fundamentally unfair trial. See Miller v. Fenton, 474 U.S. 104, 109 (1985); Clanton v. Cooper, 129 F.3d 1147, 1157-58 (10th Cir. 1997); United States v. Chiavola, 744 F.2d 1271, 1273 (7th Cir. 1984). That was not the case here. Under the facts as found by the California Court of Appeal, Officer Kane's treatment of petitioner's parents did not compare to the type of extreme treatment previously found to constitute a due process violation and did not render petitioner's trial fundamentally unfair.
His motion to suppress in the trial court argued that the totality of the circumstances of his interrogation rendered his confession involuntary. He specifically noted that: (1) by 10:30 a.m. on the day after he turned himself in, he had been in custody for over seven hours and was locked in an interrogation room without food or sleep; (2) he was only 19 years old; (3) he had never been placed under arrest and questioned at a police station; (4) he had never been to jail; (5) he had no prior criminal history; and (6) he had learning disabilities and difficulty in processing and recalling information. CT at 233, 248-49. However, there is no evidence in the record that these factors caused petitioner's will to be overborne. Rather, the record reflects that initially the petitioner consistently refused to cooperate or to admit any involvement in the shooting, notwithstanding all of the considerations listed above. It was not until meeting with his parents that things changed. He decided to cooperate with police immediately after speaking to his parents.
As noted, it is true that Sergeant Kain told petitioner he was implicated in a serious crime that carried a possible significant penalty and that he should start thinking about what he was going to say to police interrogators. Id. at 113. Kain also mentioned to petitioner and to petitioner's parents that he had investigated a similar crime in the past where the person responsible for the shooting received a 40 year-to-life sentence. Id. at 104. But it is not coercive police conduct to encourage a suspect to tell the truth or to recite potential penalties or sentences. Haswood, 350 F.3d at 1029; Amaya-Ruiz, 121 F.3d at 494. The Ninth Circuit has observed that "in most circumstances, speculation that cooperation will benefit the defendant or even promises to recommend leniency are not sufficiently compelling to overbear a defendant's will." United States v. Harrison, 34 F.3d 886, 891 (9th Cir. 1994) (citing United States v. Leon Guerrero, 847 F.2d 1363, 1366 n. 5 (9th Cir. 1988); United States v. Tingle, 658 F.2d 1332, 1336 n. 5. (9th Cir. 1981), and Collazo v. Estelle, 940 F.2d 411, 416-19 (9th Cir. 1991) (en banc)). See also Fare v. Michael C., 442 U.S. 707, 727 (1979) ("The police did indeed indicate that a cooperative attitude would be to respondent's benefit, but their remarks in this regard were far from threatening or coercive."). These statements by Sergeant Kain do not rise to the level of police coercion that would have caused petitioner's will to be overborne.
Petitioner has failed to demonstrate that the decision of the California Court of Appeal rejecting his claim that his statements to police were coerced was contrary to or an unreasonable application of United States Supreme Court precedent. Accordingly, he is not entitled to federal habeas relief on that claim.
In his next two grounds for relief, petitioner claims that the trial court violated his due process right to present a complete defense when it excluded testimony from an expert on false confessions and from a school psychologist concerning petitioner's "lifelong cognitive defects." ECF No. 1 at 4, 13-17, 18-22. Petitioner argues that the testimony of these two witnesses, which complemented each other and should have been considered together, was crucial to support his claim that his statements to police were false, involuntary, and unreliable.
Petitioner filed a motion in limine to admit the testimony of Dr. Leo, an expert on false confessions, regarding "the general factors that can lead to an involuntary and/or false confession and the phenomenon of false confession." CT at 188-229. Petitioner argued in the motion that Dr. Leo's testimony would support his defense theory that his statements to police were "elicited through overzealous use of interrogation tactics such as threats, promises, or other forms of inducements." Id. at 190. Petitioner also argued that his statements to police were "false, involuntary, and unreliable." Id. at 193. He explained that the proffered testimony of Dr. Leo would include "a discussion of the difference between a police interview and a police interrogation, the phenomenon of false confessions, and how various techniques and factors present during police interrogations can lead to a false confession." Id. Petitioner also stated that he intended to offer evidence that "there were coercive techniques and/or forms of suggestive questioning, implied promises of leniency, threats and other police techniques that resulted in unreliable evidence." Id. at 198.
The trial court denied petitioner's motion to admit Dr. Leo's testimony, finding that it was irrelevant because there was no evidence that petitioner's statements to the police were false. RT at 147-49. Specifically, the trial judge ruled that the testimony of these two witnesses was not relevant unless there was "some foundation that in fact there was an unreliable, coercive interview that led to a misstatement by the Defendant." Id. at 149. See also id. at 683-87. The trial court also concluded that expert testimony on false confessions was not necessary because it would not add anything to what the jury would already know from common experience about whether people were telling the truth. Id. at 685-86.
In the petition before this court, petitioner suggests that Dr. Leo would have testified that petitioner's learning disabilities made him more susceptible to giving a false confession, especially given the circumstances of the police interrogation. ECF No. 1 at 15. Petitioner argues that exclusion of Dr. Leo's testimony precluded his trial counsel from demonstrating that some of the factors present at the police interrogation induced him to falsely confess to the crime. Id. He contends that cross-examination of Sergeant Kain and petitioner's parents was insufficient to make this showing. In short, petitioner argues that the testimony of an expert on false confessions was necessary to support his argument that his statements to police were coerced and therefore unreliable.
Petitioner also made an oral request before the trial court to introduce the testimony of Dr. Cassorla, a school psychologist at the Tehama County Department of Education. RT at 708. He stated that Dr. Cassorla would provide evidence about petitioner's special needs involving "his memory problems and his retention problems." Id. The court denied petitioner's request to call his school psychologist as a witness because the records he relied on to evaluate petitioner were too far removed from the time of petitioner's police interrogation to have any relevance to whether he gave false statements to the police. Id. at 710. In the petition before this court, petitioner argues that the exclusion of Dr. Cassorla's testimony undermined his trial counsel's ability to show that petitioner's disabilities contributed to the giving of a false confession. ECF No. 1 at 17. He contends that the trial court's exclusion of the testimony of Dr. Leo and Dr. Cassorla "eviscerated his defense," which "depended upon showing that his confession was false, and induced by police tactics brought to bear on an 18-year-old former special education student with cognitive deficiencies." Id. at 16-17.
The California Court of Appeal rejected all of these arguments, reasoning as follows:
Mullen, 2012 WL 758145, at **7-10.
Criminal defendants have a constitutional right, implicit in the Sixth Amendment, to present a defense; this right is "a fundamental element of due process of law." Washington v. Texas, 388 U.S. 14, 19 (1967). See also Crane v. Kentucky, 476 U.S. 683, 687, 690 (1986); California v. Trombetta, 467 U.S. 479, 485 (1984); Webb v. Texas, 409 U.S. 95, 98 (1972); Moses v. Payne, 555 F.3d 742, 757 (9th Cir. 2009). Necessary to the realization of this right is the ability to present evidence, including the testimony of witnesses. Washington, 388 U.S. at 19. However, the constitutional right to present a defense is not absolute. Alcala v. Woodford, 334 F.3d 862, 877 (9th Cir. 2003). "Even relevant and reliable evidence can be excluded when the state interest is strong." Perry v. Rushen, 713 F.2d 1447, 1450 (9th Cir. 1983).
State law rules excluding evidence from criminal trials do not abridge a criminal defendant's right to present a defense unless they are "arbitrary" or "disproportionate to the purposes they were designed to serve" and "infringe[s] upon a weighty interest of the accused." United States v. Scheffer, 523 U.S. 303, 308 (1998). See also Crane, 476 U.S. at 689-91 (discussion of the tension between the discretion of state courts to exclude evidence at trial and the federal constitutional right to "present a complete defense"); Greene v. Lambert, 288 F.3d 1081, 1090 (9th Cir. 2002). Further, a criminal defendant "does not have an unfettered right to offer [evidence] that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence." Montana v. Egelhoff, 518 U.S. 37, 42 (1996) (quoting Taylor v. Illinois, 484 U.S. 400, 410 (1988)). In general, it has taken "unusually compelling circumstances . . . to outweigh the strong state interest in administration of its trials." Perry, 713 F.2d at 1452. "A habeas petitioner bears a heavy burden in showing a due process violation based on an evidentiary decision." Boyde v. Brown, 404 F.3d 1159, 1172 (9th Cir. 2005).
As set forth above, the California Court of Appeal ultimately concluded that any error in excluding the testimony of Drs. Leo and Cassorla was not prejudicial because there was no evidence petitioner's statements to police were false. In the context of federal habeas review, the standard for prejudice resulting from a trial court error is whether the error had substantial and injurious effect or influence in determining the jury's verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). Further, "[w]hen a state court has found a constitutional error to be harmless beyond a reasonable doubt, a federal court may not grant habeas relief unless the state court's determination is objectively unreasonable." Towery v. Schriro, 641 F.3d 300, 307 (9th Cir. 2010). A state court's decision "based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state court proceeding." Cooper v. Brown, 510 F.3d 870, 921 (9th Cir. 2007) (citations omitted).
Assuming arguendo that the trial court erred in excluding the testimony of Dr. Leo and Dr. Cassorla on the subject of petitioner's susceptibility to making a false confession, the conclusion of the California Court of Appeal that the error was not prejudicial is not objectively unreasonable. As explained by the state appellate court, petitioner's confession was fully consistent with the other evidence introduced at his trial. Petitioner did not recant his confession, rebut the statements of trial witnesses connecting him to the crime, or explain the spent shell casing found in his vehicle. Nor did he rebut his own statements to police with evidence, such as an alibi, that would have cast doubt on their truthfulness. Thus, even if the testimony of Drs. Leo and Cassorla could have demonstrated that petitioner was susceptible to making false statements under duress, the evidence demonstrated that, in this case, petitioner did not make false statements. There was simply no indication from the evidence presented at trial that petitioner had falsely confessed to something he did not do. Put another way, under the circumstances of this case any error in excluding testimony regarding false confessions could not have had a substantial and injurious effect or influence in determining the jury's verdict because the evidence overwhelmingly showed that petitioner's confession was true.
This court also notes that the trial judge excluded the testimony of Dr. Leo and Dr. Cassorla pursuant to state law which allows a trial judge to admit or exclude expert testimony in his or her discretion. As the U.S. Court of Appeals for the Ninth Circuit has observed, the United States Supreme Court has not "squarely addressed" whether a state court's exercise of discretion to exclude testimony violates a criminal defendant's right to present relevant evidence. Moses, 555 F.3d at 758-59. Nor has it clearly established a "controlling legal standard" for evaluating discretionary decisions to exclude the type of evidence at issue here. Id. at 758. Accordingly, the decision of the California Court of Appeal that the trial court's discretionary evidentiary ruling did not violate the federal constitution is not contrary to or an unreasonable application of clearly established United States Supreme Court precedent and may not be set aside. Id. See also Knowles v. Mirzayance, 556 U.S. 111, 112 (2009) ("it is not `an unreasonable application of' `clearly established Federal law' for a state court to decline to apply a specific legal rule that has not been squarely established by [the United States Supreme Court]"); Wright v. Van Patten, 552 U.S. 120, 126 (2008) (per curiam) (relief is "unauthorized" under Section 2254(d)(1) when the Supreme Court's decisions "given no clear answer to the question presented, let alone one in [the petitioner's] favor," because the state court cannot be said to have unreasonably applied clearly established Federal law); Brown v. Horell, 644 F.3d 969, 983 (9th Cir. 2011) ("Between the issuance of Moses and the present, the Supreme Court has not decided any case either `squarely address[ing]' the discretionary exclusion of evidence and the right to present a complete defense or `establish[ing] a controlling legal standard' for evaluating such exclusions."), cert. denied ___ U.S. ___, 2011 WL 4901379 (Nov. 14, 2011.)
The decision of the California Court of Appeal that the trial court did not commit prejudicial error in excluding the testimony of Drs. Leo and Cassorla is not contrary to or an unreasonable application of United States Supreme Court authority and is certainly not "an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Richter, 131 S. Ct. at 786-87. Accordingly, petitioner is not entitled to relief on these claims.
In his final claim for relief, petitioner argues that the trial court violated his Fifth Amendment right to remain silent when it admitted testimony by Sergeant Kain that he had refused to allow a search of his car and his residence. ECF No. 1 at 18, 22-24. Petitioner argues that this evidence was improperly used as evidence of his guilt and was highlighted for the jury during the prosecutor's closing argument. Id. He also argues that his trial counsel rendered ineffective assistance in failing to object to this testimony. Id. at 23.
The California Court of Appeal rejected these arguments, reasoning as follows:
Mullen, 2012 WL 758145, at **10-12.
As set forth above, the California Court of Appeal concluded that petitioner forfeited any claim regarding his refusal to consent to the search of his vehicle and home by failing to make a contemporaneous objection to Sergeant Kain's testimony and to the prosecutor's comments on that testimony during his closing argument. Respondent argues that the state court's finding of waiver constitutes a state procedural bar precluding this court from addressing the merits of this claim. ECF No. 13 at 43-45.
State courts may decline to review a claim based on a procedural default. Wainwright v. Sykes, 433 U.S. 72 (1977). As a general rule, a federal habeas court "`will 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.'" 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)). The state rule is only "adequate" if it is "firmly established and regularly followed." Id. (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. Ineffective assistance of counsel will establish cause to excuse a procedural default if it was "so ineffective as to violate the Federal Constitution." Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (citing Murray v. Carrier, 477 U.S. 478, 486-88 (1986)).
Assuming arguendo that petitioner's claim of error is not procedurally barred, it should be denied for lack of prejudice. It is true, as the California Court of Appeal explained, that a "refusal to consent to a warrantless search is privileged conduct which cannot be considered as evidence of criminal wrongdoing." United States v. Prescott, 581 F.2d 1343, 1351-52 (9th Cir. 1978) (defendant's refusal to permit the police to enter her home without a warrant could not be used against her at trial); see also Gasho v. United States, 39 F.3d 1420, 1438-39 (9th Cir. 1994) (same). Accordingly, it was arguably improper for the trial court to admit evidence of petitioner's refusal to consent to a search of his vehicle and his home and for the prosecutor to comment on it. However, the erroneous admission of evidence in violation of the Fifth Amendment's guarantee against self-incrimination is subject to harmless-error analysis. Neder v. United States, 527 U.S. 1, 18 (1999) (citing Arizona v. Fulminante, 499 U.S. 279, 296 (1991) (admission into evidence of involuntary confession is subject to harmless error analysis)). Given the overwhelming evidence against petitioner, including his statements to police and the testimony of witnesses placing him at the scene of the shooting, the admission of evidence that he refused to consent to a search of his vehicle and home would not have had a substantial and injurious effect or influence on the verdict. Brecht, 507 U.S. at 637.
Nor is petitioner entitled to relief on his claim that his trial counsel rendered ineffective assistance in failing to object on federal constitutional grounds to the admission of evidence that he refused to consent to a search of his vehicle and home. As noted by the state appellate court, petitioner's trial counsel may have had a valid tactical reason for allowing this evidence to be admitted without challenge, in order to provide further evidence of Sergeant Kain's heavy-handed dealings with petitioner. In any event, there is no reasonable likelihood that the outcome of petitioner's trial would have been different had his trial counsel successfully objected to evidence about petitioner's failure to consent to a search. In light of the overwhelming evidence that petitioner committed the charged crimes, petitioner would have been convicted even if evidence that he refused to consent to a search had not come before the jury. Accordingly, petitioner is not entitled to relief on his claim of ineffective assistance of counsel.
Petitioner moves for leave to conduct discovery and for the appointment of counsel to assist in conducting discovery. ECF No. 15. He summarizes the events that transpired during his police interrogation and requests that he be allowed to "inspect and copy" a wide-ranging list of evidence in the possession of the District Attorney's office, to wit: (1) any prior false reports or statements made by a prosecution witness; (2) "any evidence undermining any prosecution witness' expertise;" (3) any evidence that "contradicts a prosecution witness' statements or reports;" (4) any promise of a reward or favorable treatment to any prosecution witness or that witness' attorney; (5) "any evidence that a prosecution witness has engaged in misconduct which involved moral turpitude;" (6) any misdemeanor convictions suffered by any prosecution witness for crimes of moral turpitude; (7) criminal charges currently pending against any prosecution witness; (8) any evidence of a prosecution witness' reputation for dishonesty; (9) any statement by a prosecution witness evidencing bias toward petitioner; and (10) any evidence supporting "the statements of defense witness." Id. at 11. Petitioner argues that all of this evidence should be provided to him pursuant to Brady v. Maryland, 373 U.S. 83 (1963) ("the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution") and Giglio v. United States, 405 U.S. 150 (1972) (a violation of a defendant's rights occurs if the government knowingly uses false evidence in obtaining a conviction).
In Cullen v. Pinholster, ___ U.S. ___, ___, 131 S.Ct. 1388, 1398 (2011), the United States Supreme Court held that federal review of habeas corpus claims under § 2254(d)(1) is "limited to the record that was before the state court that adjudicated the claim on the merits." 131 S. Ct. at 1398. In the aftermath of Pinholster, conducting an evidentiary hearing in a federal habeas proceeding is futile unless the federal habeas court has first determined that the state court's adjudication of the petitioner's claims was contrary to or an unreasonable application of clearly established federal law, and therefore not entitled to deference under § 2254(d)(1), or that the state court unreasonably determined the facts based upon the record before it, and therefore deference is not warranted pursuant to § 2254(d)(2). Some courts have extended the reasoning in Pinholster, which involved a request for an evidentiary hearing, to deny as unwarranted requests for discovery or to expand the record in federal habeas corpus proceedings. See, e.g., Runningeagle v. Ryan, 686 F.3d 758, 773-74 (9th Cir. 2012) (concluding that, under Pinholster, petitioner was not entitled to discovery); Peraza v. Campbell, 462 F. App'x. 700, 701, 2011 WL 6367663, 1 (9th Cir. 2011) ("In summary, to the extent Peraza seeks to expand the record through discovery and an evidentiary hearing, beyond what was presented to the state court, we conclude that such relief is precluded by Pinholster . . . ."); Coddington v. Martel, No. S-01-1290 KJM CKD, 2013 WL 5486801 (E.D. Cal. Sept. 30, 2013). Other courts have reached the contrary conclusion. See, e.g., Sample v. Colson, F. Supp. 2d 865, 889 (W.D. Tenn. 2013) ("[g]iven the lack of direct guidance from the Supreme Court or the Sixth Circuit on the breadth of Pinholster, the Court will follow the plain language of Pinholster and limit its force to § 2254 habeas review"); Pike v. Johnson, No. 1:12-cv-35, 2013 WL 2457718, at *3 (E.D. Tenn. June 6, 2013) ("[w]hile Cullen v. Pinholster limits the scope of review under § 2254(d)(1), it says nothing about the court's discretion to allow discovery").
Regardless of whether Pinholster presents an impediment to expansion of the record absent the preliminary finding that the decision of the state court is not entitled to deference under § 2254(d)(1) or (2), petitioner here is not entitled to the discovery requested in his motion. Rule 6 of the Rules Governing Section 2254 cases provides in pertinent part:
Thus, a habeas petitioner is not entitled to discovery as a matter of course, but only upon a fact-specific showing of good cause and in the court's exercise of discretion. Bracy v. Gramley, 520 U.S. 899 (1997); Harris v. Nelson, 394 U.S. 286 (1969); Rich v. Calderon, 187 F.3d 1064, 1068 (9th Cir. 1999) (discovery is available "only in the discretion of the court and for good cause"); Jones v. Wood, 114 F.3d 1002, 1009 (9th Cir. 1997). The burden of demonstrating the materiality of the information requested is on the moving party. Stanford v. Parker, 266 F.3d 442, 461 (6th Cir. 2001) (citing Murphy v. Johnson, 205 F.3d 809, 813-15 (5th Cir. 2000)). "Bald assertions and conclusory allegations do not provide sufficient ground to warrant requiring the state to respond to discovery or require an evidentiary hearing." Parker, 266 F.3d at 460. Good cause exists "where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is entitled to relief. Bracy, 520 U.S. at 908-09.
Petitioner has failed to demonstrate good cause for the discovery sought here. He also has failed to support his requests with the required specificity and has not explained how the discovery would have any bearing on the claims before this court. Nor does he explain why the discovery that he now seeks is any different from the discovery that was available to him in state court. It is entirely possible that petitioner's trial counsel conducted the same investigation that petitioner now seeks to undertake through his discovery motion and found it unproductive, or decided that the discovery was not material to the defense. Petitioner is essentially seeking discovery on the chance that it will provide helpful information in support of his federal habeas claims. The habeas discovery rules do not permit such a wide ranging exercise, nor do they allow a petitioner to investigate his case anew after he has been convicted. Habeas petitioners may not seek to use discovery as a "fishing expedition . . . to explore their case in search of its existence." Rich, 187 F.3d at 1067 (quoting Calderon v. U.S.D.C. (Nicolaus), 98 F.3d 1102, 1106 (9th Cir. 1996)). See also Kemp v. Ryan, 638 F.3d 1245, 1260 (9th Cir. 2011) (the desire to engage in a "fishing expedition" cannot supply good cause to conduct discovery). Similarly, "good cause for discovery cannot arise from mere speculation" and "discovery cannot be ordered on the basis of pure hypothesis." Arthur v. Allen, 459 F.3d 1310, 1311 (11th Cir. 2006).
Finally, and most important, this court has concluded that none of petitioner's habeas claims are meritorious. Petitioner has not convinced the court that any of the discovery that he seeks would entitle him to federal habeas relief on any claim. Nor has petitioner demonstrated a "reason to believe that [he] may, if the facts are fully developed, be able to demonstrate that he is confined illegally and is therefore entitled to relief." Harris v. Nelson, 394 U.S. 286, 300 (1969). In short, there is no good cause to conduct further discovery with respect to any of petitioner's habeas claims at this time.
Accordingly, IT IS HEREBY ordered that petitioner's May 28, 2013 motion for discovery (ECF No. 15) is denied.
Further, 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).
