JACQUELINE CHOOLJIAN, Magistrate Judge.
On July 13, 2012, petitioner, who is in state custody and is proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in State Custody ("Petition") challenging a criminal judgment in Los Angeles County Superior Court on multiple grounds.
On January 18, 2013, respondent filed an Answer ("Answer") and lodged multiple documents ("Lodged Doc."), including the Clerk's Transcript ("CT") and the Reporter's Transcript ("RT"). On March 28, 2013, petitioner filed a Traverse ("Traverse").
The parties have consented to proceed before the undersigned United States Magistrate Judge.
For the reasons explained below, the Petition is denied and this action is dismissed, in part with prejudice, and in part without prejudice.
On February 3, 2010, a Los Angeles County Superior Court jury found petitioner guilty of attempted premeditated murder (Cal. Penal Code §§ 664/187(a) count 1), possession of a firearm by a felon (Cal. Penal Code § 12021(a)(1); count 2), street terrorism (Cal. Penal Code § 186.22(a); count 4), second degree robbery (Cal. Penal Code § 211; count 5), driving on a license suspended for a prior driving under the influence (DUI) conviction (Cal. Vehicle Code § 14601.2(a); counts 6 & 7), and resisting, obstructing, or delaying a peace officer or EMT (Cal. Penal Code § 148(a)(1); counts 8 & 9). (CT 163-71). The jury also found true, among other allegations, that: (1) petitioner committed the offenses charged in counts 1, 2, 5, 6 and 7 for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further or assist in criminal conduct by gang members (Cal. Penal Code § 186.22(b)(1) [counts 1, 2 & 5]; Cal. Penal Code § 186.22(d) [counts 6 & 7]); (2) as to count 1, a principal personally and intentionally discharged a firearm which proximately caused great bodily injury to the victim (Cal. Penal Code §§ 12022.53 (d), (e)(1)); and (3) as to count 5, a principal personally used a firearm (Cal. Penal Code §§ 12022.53(b), (e)(1)). (CT 163-69).
Petitioner thereafter waived his right to trial on prior conviction allegations and, on March 3, 2010, admitted that he had suffered a prior conviction for possession of a firearm by a felon on September 23, 2002 and a prior conviction for assault with a deadly weapon on November 7, 2005. (RT 2402-05).
On March 24, 2010, the trial court sentenced petitioner to a total of 62 years and four months to life in state prison. (CT 224-33).
On June 22, 2011, the California Court of Appeal affirmed. (Lodged Doc. 6). On September 28, 2011, the California Supreme Court denied petitioner's petition for review. (Lodged Doc. 8).
On March 23, 2012, petitioner filed a petition for writ of habeas corpus in the California Supreme Court which such court denied on June 13, 2012, with a citation to
On January 13, 2008, at approximately 8:00 p.m., Saunoa Joseph Laumua, who is in a wheelchair, was shot on his way to a Baskin-Robbins in Cerritos. As he wheeled himself down Ely Avenue, a green van drove up to him and the men inside asked, "Where you from?" When Laumua said, "I'm from nowhere," the men responded, "Yeah, you're Sporty from Artesia." Laumua said, "I'm in a wheelchair. I don't bang no more." The driver then instructed the passenger to shoot Laumua and "finish him." The van sped away when neighbors yelled that they had called the police and that the men should leave Laumua alone because he was in a wheelchair. Police found Laumua lying on the sidewalk in a small pool of blood and in pain. Laumua was shot under the right armpit and the bullet lodged in his back. Laumua was taken to the hospital and remained there for approximately two and a half weeks.
J.V. was sitting in his parked car nearby when he heard three gunshots. He then saw a dark minivan speed by, either a Dodge Grand Caravan or a Plymouth Voyager, and memorized a partial license plate, "5PG." At trial, J.V. testified that a photograph of petitioner's van was similar to the van he saw the day Laumua was shot. Deputy Sheriff John Lozada recovered four shell casings and two bullet fragments within five to six feet of where Laumua had fallen.
On January 17, 2008, at approximately 11:25 p.m., D.A. and M.B. were robbed as they walked home from work. A dark green van pulled in front of them and two men got out of the van. M.B. was able to get away, but the men grabbed D.A. One of the men put a gun to D.A.'s left temple and demanded, "Give me whatever you have. Otherwise we're going to shoot you." D.A. complied and gave the men his wallet and cell phone. The driver, who had remained in the van, told the two men to "[h]urry up. Come back. Let's go. Let's go." D.A. wrote down the license plate number — 5PGK698 — as the van drove away. At trial, D.A. identified the gun that was used as well as the dark green van and one of the robbers.
The green van was spotted by sheriff deputies at approximately 1:30 a.m. that night in Hawaiian Gardens. They observed petitioner driving and getting out of the van. After a brief pursuit, which ended in petitioner being bitten by a police dog, petitioner was arrested in connection with the robbery of D.A. A search of the van revealed a gun with a magazine containing five rounds in it as well as one round in the chamber. A second magazine was found next to the gun. Black gloves, some compact discs marked "H.G." and "M.D.T.S." and a digital scale were also found in the van. The bullet fragments found near the shooting of Laumua were found to have been fired from the gun. In addition, petitioner's DNA was found on it.
Andrew Duran was a minor when he was arrested on February 5, 2008, in connection with the robbery of D.A. and an unrelated attempted murder. He pled no contest to both charges and was sentenced as an adult to nine years in state prison. In a taped interview, which was played to the jury, he told police that petitioner picked him up in a van along with another man, "Robbie." They rode around in the van to see if they could "find something." When they saw D.A. and M.B., petitioner threw a gun to Robbie and said, "Get `em, get `em." At trial, Duran denied any knowledge of the robbery or of his interview with the detectives. Detective Gary Sloan of the Los Angeles County Sheriff's Department testified that Duran admitted during an interview that petitioner was his friend and that petitioner was the driver of the green van at the time of the robbery. Detective Brandt House, Sloan's partner, identified tattoos on Duran's body as Hawaiian Gardens gang tattoos. House explained that Duran could be labeled a snitch if he testified against petitioner and would be marked for death by gang members as a result.
At trial, the prosecution presented testimony and evidence as described above. The prosecution also presented testimony from Detective House, who qualified as a gang expert. House testified that respect was important to gang members and that they committed crimes to garner respect and elevate their status within the gang. Gang members also had gang-related tattoos to show pride in their gang. A gang member who had a reputation for cooperating with law enforcement or snitching, however, would eventually be marked for death. House testified that it was very difficult to get witnesses or victims to testify in court about gang crimes. According to House, the question, "Where are you from" was a gang challenge that alerted the person questioned to an imminent assault.
Detective House also testified to the Hawaiian Gardens gang specifically, stating that they had been in existence since the late 1950's and had over 1,000 documented members, over 250 documented affiliates and claimed the entire City of Hawaiian Gardens. The common abbreviations for the gang were "H.G.," which stood for Hawaiian Gardens, "M.D.T.S.," which stood for Malditos, "V.H.G.," which stood for Varrio Hawaiian Gardens, and "L.Q.T.S.," which stood for Loquitos. The primary activities of Hawaiian Gardens were aggravated assault, murder, attempted murder, assaults with guns, petty theft, robbery, extortion, hate crimes against African-Americans, possession of firearms and narcotics for sale and possession of stolen vehicles. Hawaiian Gardens gang's primary enemies were Artesia and Chivas.
As to Laumua, Detective House testified that he observed tattoos all over his body, including on his head and neck, which marked him as an Artesia gang member. House further testified that Laumua was a respected member of the Artesia gang and he had been credited with committing several crimes in the Hawaiian Gardens area. As a result, a Hawaiian Gardens gang member who shot and killed Laumua, a "high value target," would garner much respect and status in the gang. In fact, four previous attempts had been made on Laumua's life by Hawaiian Gardens gang members.
As to petitioner, Detective House testified that he had a large "H" and "G" tattooed on his arms with "Hawaiian" and "Gardens" tattooed beneath the corresponding letter. House noted petitioner lived in Hawaiian Gardens and both his brothers were Hawaiian Gardens gang members. Further, a field interview card showed that petitioner admitted his gang membership when he was found in the company of five other Hawaiian Gardens gang members with a nine-millimeter pistol and marijuana. In response to several hypotheticals that closely tracked the facts in the case, House opined that the crimes at issue were committed for the benefit of a street gang.
At trial, Laumua refused to answer any of the prosecutor's questions, invoking his Fifth Amendment privilege against self-incrimination. As a result, Laumua's testimony at the preliminary hearing was read to the jury. Laumua testified at the preliminary hearing that he had been an Artesia gang member since he was 16 and was known as "Moreno." He also testified that Artesia's main enemies were Hawaiian Gardens and Norwalk. Laumua acknowledged that members of his gang did not like rats or snitches who talked to the police or testified in court. Laumua denied telling the detectives any details of the shooting in his interviews with them, including identifying the shooter or the van. He stated he was taking morphine and vicodin at the time of his interviews and he did not remember anything he told the detectives. He also denied telling his mother anything more than that he had been shot and had fallen out of his wheelchair.
Laumua was impeached at the preliminary hearing by the recordings of his interviews with the police, by Detective House's testimony about those interviews and by his mother's testimony regarding his statements to her about the shooting. Laumua's mother testified at the preliminary hearing that she spoke to Laumua about the shooting and his account of the shooting was consistent with the events described above. She stated that Laumua told her the van in question was just like her Dodge Grand Caravan and that he knew the men involved in the shooting because he had been in jail with one of them. She also testified that Laumua told her he identified both the shooter and the driver from a photographic lineup but was afraid to testify in court for fear of retaliation. On cross-examination, defense counsel questioned her regarding her son's incarceration and his identification of the suspects, including his description of them.
At the preliminary hearing, Detective House testified that Laumua described the shooting in detail during his interviews with him. House confirmed that Laumua circled petitioner's picture in a photographic lineup, identifying him as the driver of the van and also identified the green van driven by petitioner. House further testified that Laumua did not appear incoherent, did not slur, did not nod off and never appeared unable to understand questions when he interviewed him at the hospital or later at his home. Laumua's tape-recorded interviews with the police were played to the jury, who heard that he circled someone's picture from a photographic lineup, discussed the details of the shooting with the officers, and identified the green van from a photograph.
The defense presented testimony from two witnesses who lived near the intersection where Laumua was shot. They were both home that evening and heard the gunshots. One witness testified that she saw a dark-colored SUV in the area and both testified that no one was near the victim after the shooting.
This Court may entertain a petition for writ of habeas corpus on "behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim: (1) "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"; or (2) "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
In applying the foregoing standards, federal courts look to the last reasoned state court decision.
However, to the extent no such reasoned opinion exists, courts must conduct an independent review of the record to determine whether the state court clearly erred in its application of controlling federal law, and consequently, whether the state court's decision was objectively unreasonable.
When it is unclear whether deference under the foregoing standards applies, federal habeas courts can deny writs of habeas corpus under Section 2254 by engaging in a de novo review.
Petitioner claims he is entitled to federal habeas relief because: (1) evidence introduced at his trial was the product of a search and seizure which violated the Fourth Amendment and his trial and appellate counsel were ineffective in failing to so argue (Claim 1); (2) the trial court violated petitioner's due process and confrontation rights by excluding evidence that Detectives Sloan and House had been accused of fabricating reports and lying on the stand (Claim 2); (3) the trial court violated petitioner's confrontation rights in admitting Laumua's preliminary hearing testimony and evidence of Laumua's prior inconsistent statements which were introduced at the preliminary hearing (Claim 3); (4) the admission of evidence regarding petitioner's prior criminal history violated due process and trial counsel was ineffective in not objecting thereto (Claim 4); (5) the trial court improperly permitted the gang expert to opine about petitioner's specific intent (Claim 5); (6) the prosecutor committed misconduct in closing argument by vouching for the credibility of Detectives Sloan and House based on facts which were not in evidence; and (7) errors at trial cumulatively deprived him of due process. (Petition at 5-6, 12-50). Petitioner is not entitled to federal habeas relief on any of his claims.
Petitioner contends that he is entitled to habeas relief because the introduction of evidence derived from an allegedly unconstitutional search of his van at an impound lot — namely the firearm used in the attempted murder and robbery bearing petitioner's DNA — violated his Fourth Amendment right to be free from unreasonable searches and seizures. (Petition at 5, 12-24; Traverse at 7-8, 13-17). He also claims that his trial counsel was ineffective in failing to move to suppress such evidence, and that his appellate counsel was ineffective in failing to assert a Fourth Amendment claim on direct appeal. (Petition at 12, 22-24; Traverse at 7-8, 18-19). The California Supreme Court — the only state court to have considered such claims — rejected them with a citation to
First, the Court addresses petitioner's Fourth Amendment claim. Where the state has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.
Second, the Court addresses respondent's contention that petitioner's related ineffective assistance of counsel claims are unexhausted. As a matter of comity, a federal court will not entertain a habeas corpus petition unless the petitioner has exhausted the available state judicial remedies on every ground presented in the petition.
Title 28, United States Code, section 2254(b)(1), explicitly provides that a habeas petition brought by a person in state custody shall not be granted unless it appears that:
State remedies have not been exhausted unless and until the petitioner's federal claims have been fairly presented to, and disposed of on the merits by the highest court of the state.
Where the California Supreme Court denies a habeas petition with a citation to
The petitioner has the burden of demonstrating that he has exhausted available state remedies.
Here, petitioner has not met his burden to demonstrate that the instant ineffective assistance of counsel claims have been exhausted. Petitioner did not present his instant claims — that his trial and appellate counsel were ineffective in failing to raise a Fourth Amendment claim — to the California Supreme Court with as much particularity as was practicable. At a minimum, petitioner could practicably have alleged whether or not he and his attorneys discussed the matter, whether his attorneys explained their rationale, if any, for not mounting a Fourth Amendment challenge to the search of the van in issue and if so, what such rationale was. To the extent petitioner and his attorneys did not contemporaneously discuss the matter, petitioner could practicably have described any subsequent efforts to contact his attorney to obtain information or a declaration explaining any such rationale. Accordingly, the Court concludes that such ineffective assistance of counsel claims are unexhausted.
Because the Petition contains both exhausted and unexhausted claims, and is therefore "mixed," the Court must further assess the appropriate disposition of the Petition as a whole. A district court generally must dismiss mixed habeas corpus proceedings, that is, proceedings which raise both exhausted and unexhausted claims.
Petitioner argues that the trial court violated petitioner's due process and confrontation rights by excluding evidence that Detectives Sloan and House had been accused of fabricating reports and lying on the stand and refusing to allow petitioner's counsel to impeach the detectives with such evidence. (Petition at 5, 25-27; Traverse at 21-27). The California Court of Appeal — the last state court to issue a reasoned decision addressing this claim — rejected it on the merits on direct appeal. (Lodged Doc. 6 at 18-19). Petitioner is not entitled to federal habeas relief on this claim.
Five days into the trial, petitioner, for the first time, indicated that he wanted to impeach the credibility of Detectives House and Sloan during cross-examination. At sidebar, defense counsel explained that Robert Rodriguez would testify that House and Sloan filed false reports and gave false testimony two years ago in his drug possession case. Rodriguez claimed that the detectives testified falsely about a statement he made to them when he never made that statement. The trial court ruled that petitioner would not be permitted to ask House and Sloan about their testimony in Rodriguez's case or to present testimony from Rodriguez. The court reasoned, "assuming it gets past the hearsay objection, again assuming in some way it's relevant, it is only collaterally relevant as to that credibility issue, and, in exercising the court's discretion, in analyzing all these factors under [Evidence Code section] 352,[
Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense.
However, to evaluate a claim of inability to present a complete defense based on the exclusion of evidence, the Court must be mindful that state evidentiary rulings are not cognizable in a federal habeas proceeding unless constitutional rights are affected.
Even if a trial court's exclusion of evidence amounts to constitutional error, a habeas petitioner is not entitled to habeas relief unless such error had a "substantial and injurious effect" upon the verdict.
The Court of Appeal reasonably rejected petitioner's instant challenge to the exclusion of the "impeachment" evidence in issue and affirmed the trial court's determination under California Evidence Code section 352, that such evidence should be excluded.
First, as the Court of Appeal recognized, evidence regarding the detectives' statements, testimony, and conduct in Rodriguez's case had little probative value. The case involving Rodriguez occurred two years prior to petitioner's trial and involved discrete events unrelated to petitioner's case.
Second, this Court likewise agrees with the Court of Appeal's assessment that the trial court properly excluded such evidence under California Evidence Code section 352.
Finally, this Court concludes that the exclusion of the evidence in issue neither deprived petitioner of his rights to due process or confrontation, nor had a substantial and injurious impact on the outcome of these proceedings. As the Court of Appeal recognized, and contrary to petitioner's suggestion otherwise, petitioner's convictions did not rest on the detectives' presentation of, for example, the statement made by Duran as the recording thereof was played for the jury, effectively placing the jurors in a position to determine for themselves whether such witness was telling the truth. Moreover, petitioner's trial counsel otherwise engaged in a vigorous cross-examination of Sloan and House, exposing certain inconsistencies/anomalies and affording petitioner's counsel a basis to suggest, as he did in closing argument, that the officers fabricated evidence against petitioner. (RT 754-56 [House], 958-64 [Sloan], 1253-63 [Sloan], 1278-79 [Sloan], 1355-83 [House], 1397-1400 [House], 1832-53 [closing]). Given all of the evidence presented in the case — the testimony of the victim, the testimony of J.V. who heard the gunshots and saw the van petitioner was driving leave the crime scene, the testimony and prior statements of Duran who identified petitioner as the driver of the van on the night of the robbery, the presence of petitioner's DNA on the gun used in the crimes, and petitioner's flight from the police — petitioner fails to demonstrate that the exclusion of the tangential and likely time-consuming evidence regarding Rodriguez's case — deprived him of the opportunity to present a meaningful defense or to confront House and Sloan as witnesses — or that it had a substantial and injurious impact on the outcome.
In short, the Court of Appeal's rejection of this claim was not contrary to, or an unreasonable application of, clearly established federal law and was not based on an unreasonable determination of the facts in light of the evidence presented. Accordingly, petitioner is not entitled to federal habeas relief on this claim.
Petitioner contends that the trial court violated his confrontation rights when it determined that Laumua was unavailable based on the invocation of his Fifth Amendment privilege against self-incrimination, and then allowed Laumua's preliminary hearing testimony and evidence of Laumua's prior inconsistent statements which were introduced at the preliminary hearing to be admitted at trial. (Petition at 5-6, 28-34; Traverse at 28-32).
When Laumua invoked his Fifth Amendment privilege against self-incrimination, the trial court found that "if he were to testify in this case regarding the issue of gang affiliation or membership, it could tend to incriminate him" in an unrelated criminal case, which contained a gang enhancement. As a result, the court found Laumua to be an unavailable witness. The trial court then allowed Laumua's testimony at the preliminary hearing to be read to the jury. Defense counsel made a hearsay objection and cited to
The Confrontation Clause of the Sixth Amendment, made applicable to the States through the Fourteenth Amendment, provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him."
"`The Confrontation Clause guarantees only "an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.'" When a witness gives `testimony that is marred by forgetfulness, confusion, or evasion. . . . the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through cross-examination.'"
The Confrontation Clause prohibits the admission of an out-of-court testimonial statement at a criminal trial unless the witness is unavailable to testify and the defendant had a prior opportunity for cross examination.
A Confrontation Clause claim is subject to harmless error analysis.
The Court of Appeal reasonably determined that the admission of Laumua's preliminary hearing testimony at petitioner's trial did not violate the Confrontation Clause. (Lodged Doc. 6 at 7-10).
First, the record amply supports the determination that Laumua was unavailable — a necessary predicate to the admission of his preliminary hearing testimony under the Confrontation Clause. The Fifth Amendment provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. The privilege "must be accorded liberal construction" and applies both to "answers that would in themselves support a conviction" but also to "those which would furnish a link in the chain of evidence needed to prosecute the claimant."
"To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result."
Here, the trial court properly sustained Laumua's privilege because had he testified at trial, it could not find that the answers sought could not possibly have a tendency to incriminate him.
Having found that Laumua was entitled to invoke his Fifth Amendment right not to testify, the court also properly determined that he was "unavailable" to testify at petitioner's trial.
Second, the Court of Appeal reasonably determined that petitioner had sufficient opportunity and motive to cross-examine during the preliminary hearing, the second necessary predicate to admit Laumua's testimony under the Confrontation Clause. (Lodged Doc. 6 at 9-10). As such court explained:
(Lodged Doc. 6 at 9-10) (citations and internal quotation marks omitted). The Court of Appeal's findings are reasonably supported by the record and its analysis is not objectively unreasonable. Because Laumua was unavailable at trial and petitioner had a prior opportunity to cross-examine him, the admission of his preliminary hearing testimony did not violate the Confrontation Clause.
In sum, the Court of Appeal's rejection of this Confrontation Clause claim was not contrary to, and did not involve an unreasonable application of clearly established federal law and was not based on an unreasonable determination of the facts in light of the evidence presented. Accordingly, petitioner is not entitled to habeas relief on this claim.
Petitioner also contends the impeachment testimony presented at the preliminary hearing by Laumua's mother and Detective House as well as the recordings of Laumua's interviews with the police were erroneously admitted at trial. The California Court of Appeal rejected this claim, finding that such evidence was properly admitted under California Evidence Code section 1294 (
As to harmless error, the Court of Appeal explained:
(Lodged Doc. 6 at 12). Where a state court has determined that a constitutional error — such as a Confrontation Clause violation — is harmless, a federal habeas court may not grant relief unless the error had a substantial and injurious effect on the outcome.
Petitioner argues that the trial court violated his due process right to a fair trial by admitting certain evidence about his criminal history — namely Detective House's testimony that petitioner had engaged in "a pattern of criminal gang activity," and that counsel's failure to object to such reference constituted ineffective assistance of counsel. (Petition at 6, 35-40; Traverse at 33-38). The California Court of Appeal — the last state court to issue a reasoned decision on this claim — rejected the evidentiary claim on procedural grounds and the related ineffective assistance of counsel claim on the merits. (Lodged Doc. 6 at 12-16). Petitioner is not entitled to federal habeas relief on such claims.
As noted above, count 4 of the Information charged petitioner with the crime of street terrorism — a violation of California Penal Code section 186.22(a) that provides:
Petitioner contends that the trial court erred when it admitted evidence of his prior criminal history to prove gang involvement under section 186.22. Specifically, petitioner takes issue with the following testimony from Detective House:
House then identified the five Hawaiian Gardens gang members who were with petitioner in 2002 at the time the field interview report card was completed. House also testified that a nine-millimeter pistol and some marijuana were found with the group.
Prior to trial, petitioner's counsel declined to stipulate to knowledge of the gang's activities for purposes of the street terrorism charge during discussions with the trial court. Petitioner's counsel also objected when the prosecutor indicated he intended to present petitioner's prior criminal convictions to prove such knowledge. The trial court reserved ruling on the issue, although it indicated that it believed the prosecution had the right to present whatever evidence it thought necessary to establish knowledge under the statute.
At trial, the court never ruled on the issue and petitioner's counsel did not move to strike Detective House's answer.
Petitioner argues that his trial counsel was ineffective in failing to object to, or to seek to strike House's reference to his "pattern of criminal activity." The Sixth Amendment guarantees the effective assistance of counsel at trial.
Where, as here, there has been a state court decision rejecting a
Here, the Court of Appeal rejected petitioner's instant ineffective assistance of counsel claim, finding, given the absence of any indication as to petitioner's counsel's reason for not objecting, that petitioner had failed to demonstrate his counsel was deficient and that, in any event, petitioner had failed to show a reasonable probability that, but for counsel's failure to object, the result of the proceeding would have been different. (Lodged Doc. 6 at 14-16). As to the latter point, the Court of Appeal explained:
(Lodged Doc. 6 at 15-16) (citations omitted). This Court agrees with the findings and analysis of the Court of Appeal and sees no basis upon which to afford petitioner federal habeas relief on this claim.
In sum, the California Court of Appeal's rejection of this ineffective assistance of counsel claim was not contrary to, or an unreasonable application of clearly established federal law. Nor was it based on an unreasonable determination of the facts in light of the evidence presented. Accordingly, petitioner is not entitled to federal habeas relief on this basis.
Petitioner argues that the admission of House's testimony was in error because it lacked probative value and was extremely prejudicial, contending that his prior convictions included no gang findings and there was no evidence to demonstrate that those convictions displayed gang knowledge or connection
First, to the extent petitioner argues that admission of the challenged evidence violated the California Evidence Code or any other state law, his claim is not cognizable on federal habeas review.
Second, to the extent predicated on a violation of federal due process, petitioner's claim still does not merit relief. "A habeas petitioner bears a heavy burden in showing a due process violation based on an evidentiary decision."
Finally, even if the admission of such evidence was improper, it appears to the Court that any error was harmless. Habeas relief is available for evidentiary error only when a petitioner demonstrates that he has suffered prejudice as a result of an alleged due process violation — that is, the error had "`a substantial and injurious effect' on the verdict."
Accordingly, petitioner is not entitled to federal habeas relief on this claim.
Petitioner argues that the trial court improperly permitted the gang expert to offer an opinion regarding petitioner's specific intent, effectively reducing the prosecution's burden of proof and denying petitioner a fair trial. (Petition at 6, 41-42; Traverse at 39-42). The California Court of Appeal — the last state court to issue a reasoned decision addressing this claim — rejected it on the merits. (Lodged Doc. 6 at 16-18). Petitioner is not entitled to federal habeas relief on this claim.
First, to the extent petitioner may claim that the admission of the gang expert's testimony violated California law, petitioner is not entitled to habeas relief.
Second, to the extent petitioner contends that the admission of the gang expert's testimony deprived him of due process and a fair trial, petitioner's claim lacks merit. Petitioner essentially alleges that the introduction of the expert's testimony improperly invaded the province of the jury and relieved the prosecution of its burden of proof because the expert purportedly opined on an ultimate issue to be decided by the jury — his specific intent. Petitioner has failed to demonstrate a violation of any clearly established principle of due process.
"`The admission of evidence does not provide a basis for habeas relief unless it rendered the trial fundamentally unfair in violation of due process.'"
Furthermore, the United States Supreme Court has not held "that the Constitution is violated by the admission of expert testimony concerning an ultimate issue to be resolved by the trier of fact."
Third, in any event, petitioner's contention that the expert usurped the jury's fact-finding role, assertedly by opining on an ultimate issue for the jury, does not suggest petitioner's trial was fundamentally unfair. Under California law, expert testimony is admissible on a subject "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact."
Specifically, in the gang context, an expert may testify about whether a defendant acted for the benefit of a gang, even though the question is an ultimate factual issue in the case.
A gang expert may render opinion testimony in response to a hypothetical question where, as here, the question posed is "rooted in facts shown by the evidence."
In petitioner's case, while the prosecutor posed a hypothetical question based on the specific evidence adduced at petitioner's trial, the expert did not opine that petitioner actually committed the crimes or harbored a particular intent.
This conclusion is supported by the trial court's admonition to the jury that it would be the jury who would ultimately decide the facts and whether any assumption in the hypothetical questioning had been established. (CT 113). The jury is presumed to have followed its instructions.
For the foregoing reasons, the Court of Appeal's rejection of this claim was not contrary to, or an objectively unreasonable application of, any clearly established federal law as determined by the United States Supreme Court, and did not constitute an unreasonable determination of the facts in light of the evidence presented. Accordingly, petitioner is not entitled to federal habeas relief on this claim.
Petitioner argues that the prosecutor committed misconduct in closing argument by vouching for the credibility of Detectives Sloan and House based on facts which were not in evidence. (Petition at 43-45; Traverse at 43-46). The California Court of Appeal — the last state court to issue a reasoned decision addressing this claim — rejected it on the merits on direct appeal. (Lodged Doc. 6 at 20). Petitioner is not entitled to federal habeas relief on this claim.
Petitioner's trial counsel in closing argument theorized that the detectives had conspired to frame petitioner. In his rebuttal closing argument, the prosecutor responded that two detectives, "in good standing," would not risk their entire careers or risk going to federal prison to frame someone they did not know.
A prosecutor's improper remarks at trial "will be held to violate the Constitution only if they `so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"
In fashioning closing arguments, prosecutors are allowed reasonably wide latitude.
It is clearly established that a prosecutor commits misconduct when he or she manipulates or misstates the evidence presented during the trial, offers unsolicited personal views on the evidence, or vouches for the veracity of a government witness.
Where a state court has rejected a prosecutorial misconduct claim on the merits, federal habeas relief may be granted only if the state court's application of
In addition, on habeas review, a federal court will not disturb a conviction unless the alleged prosecutorial misconduct had a substantial and injurious effect or influence in determining the jury's verdict.
The Court of Appeal reasonably concluded that no prosecutorial misconduct had occurred and reasonably rejected petitioner's contention that, in light of the previously referenced allegations by Rodriguez that the detectives had lied, the prosecutor was affirmatively misleading the jury. The Court of Appeal noted:
(Lodged Doc. 6 at 20). This Court agrees with the findings and analysis of the Court of Appeal.
Here, the prosecutor did not offer his personal assurances that the detectives were telling the truth or suggest any evidence outside the record supported their testimony. A prosecutor has "reasonable latitude" in fashioning closing arguments and can argue "reasonable inferences" from the evidence, as here. On this record, the prosecutor did not improperly vouch for the witnesses or mislead the jury. Moreover, the trial court properly instructed the jury that it "must determine what facts have been proved by the evidence" and that "[s]tatements made by the attorneys during the trial are not evidence." (CT 86, 89, 90).
In sum, the Court of Appeal's rejection of petitioner's prosecutorial misconduct claim was not contrary to, or an unreasonable application of, clearly established federal law and was not based on an unreasonable determination of the facts in light of the evidence presented. Accordingly, petitioner is not entitled to federal habeas relief on this claim.
Petitioner contends that the cumulative effect of the errors alleged in Claims 2-6 denied him due process. (Petition at 46-50; Traverse at 47-50). This claim was rejected on direct appeal without comment. (Lodged Docs. 3, 6-8). Based upon an independent review of the record, this Court concludes that petitioner is not entitled to federal habeas relief based thereon. This Court has considered and rejected Claim 2-6 on the merits. "While the combined effect of multiple errors may violate due process even when no single error amounts to a constitutional violation or requires reversal, habeas relief is warranted only where the errors infect a trial with unfairness."
IT IS THEREFORE ORDERED: (1) the Petition is denied; (2) Claim 1 is dismissed without prejudice; (3) petitioner's remaining claims are dismissed with prejudice; and (4) Judgment shall be entered accordingly.
(RT 1325-26).
