EDMUND F. BRENNAN, District Judge.
Petitioner is a state prisoner proceeding without counsel 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 April 26, 2011, in the Shasta County Superior Court on charges of petty theft with a prior theft-related conviction. He seeks federal habeas relief on the grounds that the trial court violated his federal constitutional rights in failing to properly instruct the jury on circumstantial evidence as it applied to the charge against him. 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In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the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. Longacre, No. C068477, 2013 WL 5884163 at **1-2 (Cal. 3d Dist. Nov. 4, 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. 1,5 (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, 562 U.S. at 99. 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, 562 U.S. at 98.
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, 562 U.S. at 98. 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 102. 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, 562 U.S. at 98).
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 sole ground for federal habeas relief is his claim that the trial court violated his federal constitutional rights in failing to instruct his jury on circumstantial evidence with CALCRIM No. 224. ECF No. 1 at 5.
The California Court of Appeal concluded that the trial court erred in failing to give CALCRIM No. 224 under the circumstances of this case, but that the error was harmless. The court reasoned as follows:
Longacre, 2013 WL 5884163 at **2-3.
In general, a challenge to jury instructions does not state a federal constitutional claim. Engle v. Isaac, 456 U.S. 107, 119 (1982)); Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983). An error in a state court determination that a jury instruction was not warranted under state law cannot form the basis for federal habeas relief. Estelle, 502 U.S. at 67-68; Menendez v. Terhune, 422 F.3d 1012, 1029 (9th Cir. 2005). Rather, "a claim that a court violated a petitioner's due process rights by omitting an instruction requires a showing that the error `so infected the entire trial that the resulting conviction violate[d] due process.'" Menendez, 422 F.3d at 1029 (citations omitted. Where the challenge is to a refusal or failure to give an instruction, the petitioner's burden is "especially heavy," because "[a]n omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law." Henderson v. Kibbe, 431 U.S. 145, 155 (1977). See also Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997) (same).
The case of Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) provides the test for prejudice in this context. Fry v. Pliler, 551 U.S. 112, 121-22 (2007). Under Brecht, "an instructional error is prejudicial and habeas relief is appropriate only if, after reviewing the record as a whole, we conclude that there was a substantial and injurious effect or influence on the verdict, or if we are `left in grave doubt' as to whether there was such an effect." Pulido v. Chrones, 629 F.3d 1007, 1012 (9th Cir. 2010) (quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946) (applying Brecht harmless error test in the context of a jury instruction claim). Grave doubt exists in the "unusual" circumstance where, "in the judge's mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error." O'Neal v. McAninch, 513 U.S. 432, 435 (1995).
Petitioner argues that the trial court should have instructed his jury with CALCRIM No. 224 instead of CALCRIM No. 225 because the entire case against him was based on circumstantial evidence. He also argues that the error was prejudicial because the circumstantial case against him was not strong.
CALCRIM No. 225 provides:
Thus, CALCRIM No. 225 is more narrowly tailored to the jury's consideration of circumstantial evidence regarding the defendant's mental state, whereas CALCRIM No. 224 applies more broadly to the jury's consideration of both the defendant's acts and his mental state.
The state court record reflects that petitioner's trial counsel asked the trial court to instruct the jury with the broader language set forth in CALCRIM No. 224. Reporter's Transcript on Appeal (RT) at 83. Counsel argued that "225 is given when intent and mental state is the only thing proven by circumstantial evidence. But I think the entire case is circumstantial evidence so we would need 224." Id. The trial judge concluded, however, that CALCRIM No. 225 was the more appropriate instruction given the "direct evidence" from the store manager that petitioner stole the muffler. Id. at 83-84. As set forth above, the California Court of Appeal disagreed, finding that the trial court should have instructed the jury with CALCRIM No. 224 because "the evidence of [petitioner's] guilt was not direct." Longacre, 2013 WL 5884163 at *2.
Assuming arguendo that the trial court committed federal constitutional error in failing to instruct petitioner's jury with CALCRIM No. 224, petitioner has failed to demonstrate that he was prejudiced by the error. In light of the strong circumstantial evidence that petitioner stole the muffler from the Auto Zone store, the trial court's failure to instruct the jury with CALCRIM No. 224 could not have had a substantial and injurious effect or influence on the verdict in this case. As explained by the California Court of Appeal, the record reflects that Benjamin Carter testified he saw petitioner come in the store, "fumbl[e] about with our mufflers and then with his pants," and walk around the back of the store. RT at 41. When Carter approached petitioner and asked him if he needed help, petitioner left "within ten minutes," and "bolted for the door." Id. Carter testified that he believed petitioner had taken something from the store because "most people don't bolt for the door when I ask them if they need help and walk towards them." Id. at 42. Carter also observed that petitioner had "a bulge in his pants . . . from his waist down to about his knees." Id. He stated that after he was contacted by the police he went to the sales floor and noticed that there was an empty Flowmaster muffler box on the shelf. Id. at 44. He testified there was no reason for an empty box to be on the store shelf. Id. The police later came to the store and showed Carter a Flowmaster muffler, and Carter "brought them the box." Id. at 45. When the police arrived at petitioner's house, they discovered a car matching the description of petitioner's car and a new muffler that appeared to match the one that was missing from the store. Id. at 44-47, 66-68.
Petitioner points to trial testimony that he believes demonstrates the circumstantial evidence against him was not strong. He notes that Carter told the 911 operator he saw petitioner put a chrome exhaust tip into his pants, but at trial he simply testified that he saw petitioner pick up a couple of exhaust tips and them place them back down on the shelf. ECF No. 10 at 16-17; RT at 44. Petitioner also notes that Carter testified petitioner "bolted" out of the store, but he also testified that petitioner left the store within ten minutes of his conversation with Carter. Petitioner argues that these statements "contradict each other." ECF No. 10 at 17.
Petitioner points out that the stolen muffler was not produced at trial and he argues that the lack of specificity regarding the serial number on the stolen muffler made it "hard to see how Mr. Carter could have known that the muffler Officer Weaver was describing over the phone was the `exact' muffler missing from the empty box at the store." Id. at 18-20. Petitioner also notes that contrary to the Court of Appeal's statement that there was no evidence he possessed a new Flowmaster muffler prior to the date of the theft at the store, a defense witness testified that petitioner left a liquidation store a couple of months before the theft with a black muffler. Id. at 21; RT at 96-98.
After a review of the record, this court concludes that the decision of the California Court of Appeal that petitioner was not prejudiced by the trial court's failure to instruct the jury with CALCRIM No. 224 is not contrary to or an unreasonable application of federal law, nor is it based on an unreasonable determination of the facts of this case. Given the evidence of petitioner's guilt, summarized above, the trial court's failure to give CALCRIM No. 224 did not render petitioner's trial fundamentally unfair or have a substantial and injurious effect on the verdict. Certainly, the state court's conclusion that the instructional error was harmless is not "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Richter, 562 U.S. at 103. Accordingly, petitioner is not entitled to habeas relief on his claim before this court.
Although petitioner has consented to proceed before a magistrate judge, respondent has ignored the Order Re Consent or Request For Reassignment. Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court is directed to randomly assign a United States District judge to this action.
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)(1). 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).
