NITA L. STORMES, Magistrate Judge.
Petitioner Lavelle Marcelle Porter ("Petitioner," "Porter," or "Lavalle"), a state prisoner proceeding pro se and in forma pauperis, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his San Diego Superior Court conviction for assault with a deadly weapon and battery in case number SCD263061. (ECF No. 1 at 2 ("Petition").)
The following facts are taken from the California Court of Appeal opinion:
(ECF No. 6 at 2-4.)
Petitioner was initially charged on July 27, 2015. (Lodgment No. 6 at 1-5.) Petitioner was subsequently charged by two amended informations, the latter of which charged him with assault with a deadly weapon (Cal. Penal Code § 245(a)(1)) and battery with serious bodily injury (Cal. Penal Code § 243(D)). (Id. at 40-44.) The State also alleged that in the commission and attempted commission of the offenses, Petitioner personally used a dangerous and deadly weapon (within the meaning of Cal. Penal Code § 1192.7(c)(23)), personally inflicted great bodily injury upon R.D. (within the meaning of Cal. Penal Code §§ 1192.7(c)(8), 12022.7(a)). (Id. at 41.) The State further alleged that Petitioner had been previously convicted of more than two felonies (within the meaning of Cal. Penal Code § 1203(e)(4)), and that he had a prior conviction which constituted a strike (under Cal. Penal Code §§ 667(b)-(i), 668, 1170.12). (Id. at 42-44.)
On January 12, 2016, a jury convicted Petitioner of both assault with a deadly weapon and the lesser included offense of battery, and found true the accompanying allegations. (Lodgment 8-1 at 412-14.) In a bifurcated proceeding, the jury also found that Petitioner served four prior prison terms, had a prior serious felony conviction, and had a prior strike conviction. (Lodgment 8-2 at 446-47.)
On March 8, 2016, the trial court sentenced Petitioner to 19 years in state prison. (Lodgment 8-3 at 461.) There, the trial court sentenced Petitioner to eight years for the assault with a deadly weapon (upper term of four years, doubled under the Three Strikes law for prior strike conviction), three years for the inflicting great bodily harm enhancement, five years for the prior serious felony conviction enhancement, and an addition of three years for Petitioner's prison priors.
On September 28, 2016, Petitioner filed for appeal. (Lodgment No. 1 at 13.) In his direct appeal, Petitioner claimed that the trial court erred by excluding the recording of 911 calls that he had made on July 5, 2015, where he reported that he was being followed and threatened by men at the same trolley stop where the assault took place. (Id. at 21-40.) Petitioner argued that this evidence was relevant because it goes to his claim of self-defense and that his conviction should be reversed. (Id.) On May 8, 2017, the California Court of Appeals rejected the argument and affirmed the conviction. (ECF No. 6 at 45-57.)
On June 15, 2017, Petitioner sought review from the California Supreme Court. (Lodgment No. 2.) There, he raised the same issue regarding the exclusion of the 911 calls. (Id.) The California Supreme Court issued an order summarily denying review on July 26, 2017. (Lodgment No. 3.)
On October 11, 2018, Petitioner filed the instant federal petition for writ of habeas corpus in this Court. (Petition at 1.)
Petitioner's petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320 (1997). Under AEDPA, a habeas petition will not be granted unless the adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. 28 U.S.C. § 2254(d); Early v. Packer, 537 U.S. 3, 8 (2002).
A federal court is not called upon to decide whether it agrees with the state court's determination; rather, the court applies an extraordinarily deferential review, inquiring only whether the state court's decision was objectively unreasonable. See Yarborough v. Gentry, 540 U.S. 1, 4 (2003); Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004). In order to grant relief under § 2254(d)(2), a federal court "must be convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record." See Taylor v. Maddox, 366 F.3d 992, 1001 (9th Cir. 2004).
A federal habeas court may grant relief under the "contrary to" clause if the state court applied a rule different from the governing law set forth in Supreme Court cases, or if it decided a case differently than the Supreme Court on a set of materially indistinguishable facts. See Bell v. Cone, 535 U.S. 685, 694 (2002). A state court need not cite Supreme Court precedent when resolving a habeas corpus claim. See Early, 537 U.S. at 8. As long as neither the reasoning nor the result of the state court decision contradicts Supreme Court precedent, the decision will not be "contrary to" clearly established federal law. Ylst v. Nunnemaker, 501 U.S. 797, 805-06 (1991). Clearly established federal law, for purposes of § 2254(d), means "the governing principle or principles set forth by the Supreme Court at the time the state court renders its decision." Lockyer v. Andrade, 538 U.S. 63, 72 (2003)
The court may grant relief under the "unreasonable application" clause if the state court correctly identified the governing legal principle from Supreme Court decisions but unreasonably applied those decisions to the facts of a particular case. Bell, 535 U.S. at 694. The "unreasonable application" clause requires that the state court decision be more than incorrect or erroneous; to warrant habeas relief, the state court's application of clearly established federal law must be "objectively unreasonable." See Lockyer, 538 U.S. at 75. "[A] habeas court [must] determine what arguments or theories supported, or could have supported, the state-court decision and then . . . ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with a prior decision of [the Supreme Court]." Harrington v. Richter, 562 U.S. 86, 88 (2011). This is an extremely deferential review, posing a heavy burden on the Petitioner: to prove that the state court's ruling on the claim was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 103.
To determine if a decision was based on an unreasonable determination of the facts in light of the evidence presented, the state court's factual findings are presumed correct and this presumption will not be overturned on factual grounds unless this Court finds that the factual determinations were objectively unreasonable in light of the evidence presented in state court. See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003); see also Rice v. Collins, 546 U.S. 333, 341-42 (2006) (the fact that "[r]easonable minds reviewing the record might disagree" does not render a decision objectively unreasonable). Petitioner may overcome that presumption only by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Schriro v. Landrigan, 550 U.S. 465, 473-74 (2007). A state court decision is only considered objectively unreasonable when it is "more than incorrect or erroneous." Williams v. Taylor, 529 U.S. 362, 407 (2000).
Where there is no reasoned decision from the state's highest court, the Court "looks through" to the underlying appellate court decision and presumes it provides the basis for the higher court's denial of a claim or claims. See Ylst, 501 U.S. at 805-06. If the dispositive state court order does not "furnish a basis for its reasoning," federal habeas courts must conduct an independent review of the record to determine whether the state court's decision is contrary to, or an unreasonable application of, clearly established Supreme Court law. See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000) (overruled on other grounds by Andrade, 538 U.S. at 75-76); accord Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
In this federal habeas petition, the only issue raised by Petitioner is the same issue previously raised regarding the exclusion of the 911 calls.
During trial, Petitioner's counsel requested a court order so that she could obtain Petitioner's phone records during the month of July 2015 to check for 911 calls.
The records showed that Petitioner made three calls to 911 on July 5, 2015, lasting about 11-12 minutes total. (Id. at 198.) The calls were played in court outside the presence of the jury. (Id. at 224.) The calls were not transcribed so the Court relies on the Court of Appeal's factual description of the 911 calls, which were presented to that court for the appeal on a computer disk of audio recordings:
(ECF No. 6 at 49-51.)
In addition, during trial, the prosecution attorney obtained the computer-aided dispatch ("C.A.D.") which included notes stating "Trolley sec [security] has visual on camera. Male is sitting alone, looks paranoid, looking around, talking to himself/holding blk swtr [black sweater] in his hand. Poss in white t-shirt with lettering on the back. . . . On the back/other subjs [subjects] sitting far from male." (Lodgment 8-1 at 198-99.)
During trial, Petitioner's counsel argued that the calls should be admitted as they go to his state of mind at the time the assault took place and would be a basis for his self-defense claim. (Id. at 201, 224.) Prosecution counsel argued that the timing of the calls was too far removed and, regardless, that the content of the calls do not show that Petitioner was actually being threatened on that date. (Id. at 225-226.) After hearing the tapes and arguments, the Court reserved final ruling on the pending defense testimony, but tentatively ruled:
(Id. at 226-27.)
Subsequently, after Petitioner testified and both sides rested, the Court made its final ruling:
(Id. at 398-99.)
Petitioner appealed this issue to the California Court of Appeal and the California Supreme Court. Because the California Supreme Court summarily denied the petition, the Court looks through to the last reasoned opinion, that of the California Court of Appeal. That court found that the exclusion of the 911 calls was not an abuse of discretion because they were not relevant:
(ECF No. 6 at 55.) The court continued:
(Id. at 565-56.)
It is well-established that errors in state court evidentiary rulings cannot serve as a basis for habeas relief. Estelle v. McGuire, 502 U.S. 62, 67 (1991) ("We have stated many times that `federal habeas corpus relief does not lie for errors of state law.'"); Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (holding same). Rather, "a state court's evidentiary ruling, even if erroneous, is grounds for federal habeas relief only if it renders the state proceedings so fundamentally unfair as to violate due process." Spivey v. Rocha, 194 F.3d 971, 977 (9th Cir. 1999); Larson v. Palmateer, 515 F.3d 1057, 1065 (9th Cir. 2008) ("The correctness of the trial court's evidentiary ruling as a matter of state law is irrelevant to our review, because a federal court may entertain an application for a writ of habeas corpus `only on the ground that [the petitioner] is in custody in violation of the Constitution or laws or treaties of the United States.'"). Thus, Petitioner cannot be granted habeas relief simply by arguing that the trial court's exclusion of the 911 calls was in violation of California Evidence Code § 352.
The Constitution does guarantee that a criminal defendant must have a meaningful opportunity to present evidence in his defense at trial. See, e.g., Taylor v. Illinois, 484 U.S. 400, 408 (1988); Crane v. Kentucky, 476 U.S. 683, 690 (1986). This is not an unfettered right, and states can place limits on what kind of evidence is permitted. Taylor, 484 U.S. at 410 ("The accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence."); Chambers v. Mississippi, 410 U.S. 284, 302 (1973) ("The accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.").
Specifically, rules that balance the "probative value" against "other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury" generally do not offend the Constitution. Holmes v. South Carolina, 547 U.S. 319, 326 (2006) (noting that rules like the Federal Rule of Evidence 403, among other model rules, are well-established as constitutional and permit trial courts to perform balancing tests); see also Crane, 476 U.S. at 689-90 ("[T]he Constitution leaves to the judges who must make these decisions `wide latitude' to exclude evidence that is `repetitive . . ., only marginally relevant' or poses an undue risk of `harassment, prejudice, [or] confusion of the issues.'") (citation omitted); Montana v. Egelhoff, 518 U.S. 37, 42 (1996) (including Rule 403 as one of "any number of familiar and unquestionably constitutional evidentiary rules also authorize the exclusion of relevant evidence").
The Ninth Circuit in Moses v. Payne, 555 F.3d 742 (9th Cir. 2009), analyzed a similar state evidence rule under this legal framework. There, the petitioner challenged on habeas petition the exclusion of evidence under Washington state evidence rule 702, which "admits expert testimony if it will assist the trier of fact to understand the evidence or fact at issue." Id. at 756. First, the court considered the constitutionality of the Rule, on its face. After discussing several Supreme Court cases where evidentiary rules were struck down as constitutional violations, the court explained why the rule before it was different: "The evidentiary rules in those cases, by their terms, required the trial court to exclude crucial evidence that had a critical effect on the trial, with little or no rational justification. In general, the rules precluded a defendant from testifying, excluded testimony from key percipient witnesses, or excluded the introduction of all evidence relating to a crucial defense. In contrast, Rule 702 does not require a trial court to exclude evidence. Rather, it authorizes a court to admit expert testimony `if it will assist the trier of fact to understand the evidence or a fact in issue.'" Id. at 758. Thus, the court concluded that its rule was more akin to those that were discussed with approval in Holmes.
Next, in Moses, the Ninth Circuit considered the argument that the trial court's exercise of discretion in applying the state evidence rule formed the basis of the habeas petition. 555 F.3d at 758. However, the court held that the Supreme Court cases have all "focused only on whether an evidentiary rule, by its own terms, violated a defendant's right to present evidence" and did not "squarely address whether a court's exercise of discretion to exclude expert testimony violates a criminal defendant's constitutional right to present relevant evidence." Id. In addition, the court found that while there was a Ninth Circuit case outlining the test where a trial court's exercise of discretion to exclude evidence under an otherwise valid evidentiary rule might violate a defendant's rights, this does not serve to satisfy the "clearly established" federal law under AEDPA because it was not Supreme Court law. Id. (quoting Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003)). Thus, under this scenario as well, the Moses court found that the habeas petition failed.
The same holds true for California Evidence Code § 352. This rule is essentially the state rule counterpart to Federal Rule of Evidence 403. It does not require the exclusion of evidence but only permits the trial court to weigh the evidence against other factors that express legitimate state concerns. As such, various district courts have held that Rule 352 does not violate the Constitution on its face and cannot form the basis for habeas relief. See, e.g., Mendez v. Biter, No. C 10-5555 PJH PR, 2013 WL 843554, at *15 (N.D. Cal. Mar. 6, 2013) ("[P]etitioner's impeachment evidence was excluded under section 352 of the California Evidence Code, a well-established rule of evidence that permits a court to exercise its discretion in admitting testimony. The rule does not, in and of itself, abridge a defendant's right to present a defense. Because the Supreme Court has not squarely addressed the issue whether a trial court's exercise of its discretion in this context violated a defendant's constitutional right to present a defense, petitioner is not entitled to federal habeas relief.") (citation omitted); Smith v. Marshall, No. EDCV 09-886 PSG FFM, 2012 WL 1440612, at *11 (C.D. Cal. Mar. 26, 2012) ("Pursuant to California law, a decision to exclude evidence under California Evidence Code section 352 necessarily involves the exercise of discretion. Indeed, it requires the trial court to balance the evidence's probative value versus its potential to cause prejudice, confusion, and undue consumption of time. Because no Supreme Court case has squarely held that the exclusion of evidence under these circumstances violates a criminal defendant's right to present a defense, the state court's holding could not have been an unreasonable application of clearly established federal law as determined by the Supreme Court."); Balderrama v. Scribner, No. CV06-7401-PSG MAN, 2010 WL 1051110, at *6 (C.D. Cal. Feb. 9, 2010) ("Thus, a rule such as that set forth in California Evidence Code § 352 may be applied, consistently with the Constitution, to exclude relevant evidence sought to be introduced as part of the defense case."); Bonaparte v. Soto, No. 14CV2725-WQH (RBB), 2015 WL 11023216, at *9-10 (S.D. Cal. Dec. 18, 2015); Gutierrez v. Swarthout, No. 1:10-CV-01014-LJO, 2012 WL 5210107, at *27 (E.D. Cal. Oct. 22, 2012).
However, even if the Supreme Court's general due process standard were considered to be "clearly established" law governing trial court discretionary decisions concerning the exclusion of testimony, Petitioner has not shown that the trial court's decision in the present case was contrary to, or an unreasonable application of, clearly established federal law. See Spivey, 194 F.3d at 977-78 ("It is well settled that a state court's evidentiary ruling, even if erroneous, is grounds for federal habeas relief only if it renders the state proceedings so fundamentally unfair as to violate due process"). The trial court did not apply Rule 352 in an arbitrary manner; rather, the trial court heard argument and testimony and concluded that there was not sufficient evidence to link the 911 calls to the assault, taking place over two weeks later. Petitioner himself testified that he was not aware of the alleged link between Mr. Duncan to the prior incident on July 5 at the time of the July 23rd attack and only made the connection after the attack occurred. (See Lodgment 8-1 at 239 ("The first time that I became aware of actually who Mr. Duncan was after the incident, once I got the police report, and then I positively recognized Mr. Duncan as one of the individuals that has surrounded me and tried to attack me prior at the exact same bus stop."); id. at 299 ("And I didn't know it was him until after I reviewed the information in the discovery and seen a picture of him. I didn't know who he was, but once I seen the gentleman, I positively identified him as one of the individuals."); id. at 304 ("It didn't become apparent to me until I became the attorney of record and then I got the discovery. Once I got the discovery, then I looked at the photos, and then I recognized him as the individual — one of the individuals who were there.").)
In addition, while self-defense is to be considered from the viewpoint of the defendant and the danger to the defendant did not have to actually exist, that belief has to be "reasonable," judging from the viewpoint of what "a reasonable person in a similar situation with similar knowledge would have believed." CALCRIM 3470. The state appellate court found that evidence surrounding 911 calls tended to show that Petitioner was alone, talking to himself and paranoid, and even admitted to 911 dispatch that the group of men had not talked to him or threatened him. Thus, the appellate court found that his belief about being in danger was "unreasonabl[e] and did "not tend to demonstrate that he held a reasonable belief that he had to defend himself against the victim, who did not speak to or otherwise communicate with Porter, 18 days later." (ECF No. 6 at 55.) Even if the calls may have had some minimal relevance, the appellate court held that whatever minimal relevance would be outweighed by the time it would take to play the calls and to present other evidence to provide further context or potential jury confusion caused by playing the calls. (Id. at 56.) Further, as Respondent points out, there was other evidence presented going to Petitioner's guilt, including Mr. Duncan's testimony at trial and the video of the assault itself. Thus, this one decision regarding the 911 calls did not render the totality of the state proceedings fundamentally unfair, and was not a contrary or unreasonable application of federal law.
Petitioner argues that the strength of the evidence against him only appears "great" because 911 calls were excluded. ECF No. 11 at 9-10. However, a review of the record indicates that even though the calls themselves were not admitted, the jury would have been aware of the 911 calls through Petitioner's own testimony and attorney argument. Petitioner provided some testimony that was not stricken, alluding to the prior 911 calls being made on July 5 and his claim of self-defense. Petitioner testified that he believed Mr. Duncan had tried to attack him on a prior date. (Lodgment 8-1 at 239-40 ("
(Id. at 299.) This was followed by this next line of questioning:
(Id. at 303-04.) The trial court gave the self-defense jury instruction and Petitioner's counsel argued this during closing arguments:
(Id. at 367.) Thus, contrary to Petitioner's contentions, the jury heard this testimony and did have some opportunity to take it into consideration as part of his self-defense claim.
Furthermore, upon review of the record, the state court's factual findings are not objectively unreasonable in light of the evidence presented in court, as discussed above. See Miller-El, 537 U.S. at 340. Accordingly, for all of the foregoing reasons, the Court recommends that Petitioner's habeas petition be
The Court submits this Report and Recommendation to United States District Judge Cathy Ann Bencivengo under 28 U.S.C. § 636(b)(1) and Local Civil Rule HC.2 of the United States District Court for the Southern District of California. In addition,
