YVONNE GONZALEZ ROGERS, District Judge.
This matter is now before the Court for consideration of Edward V. Ray's ("Petitioner") pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. The court ordered respondent to show cause why the writ should not be granted. Respondent filed an answer and a memorandum of points and authorities in support of it, and lodged exhibits with the court. For the reasons set forth below, the Petition is DENIED as to all claims. In addition, no certificate of appealability will be issued.
On March 20, 2007, a jury found Petitioner guilty of 21 counts of robbery on 15 separate occasions between July 12, 2005, and August 27, 2006, see Cal. Penal Code § 211. Respondent's Exhibit ("Resp. Exh.") A5 at 1095-1115, 1117. On four counts, the jury found true the allegation that Petitioner personally used a firearm during the commission of the offense, and on two of those counts the jury also found true the allegation that Petitioner personally inflicted great bodily injury, see Cal. Penal Code §§ 12022.53(b), 12022.7. Resp. Exh. A5 at 1106-07, 1111-12. On April 17, 2007, the court sentenced Petitioner to an aggregate term of 38 years and four months in prison. Resp. Exh. H at 2. On November 23, 2009, the California Court of Appeal affirmed the judgment. Resp. Exh. H, People v. Ray, Jr., 2009 WL 4023678 (Cal. App. 1 Dist.). Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, which was denied on November 23, 2009. Resp. Exh. I, L. On March 10, 2010, a petition for review of the Court of Appeal's decision on direct appeal, and a petition for writ of habeas corpus were both summarily denied by the California Supreme Court. Resp. Exh. M, N.
The facts relating to Petitioner's convictions, as described by the California Court of Appeal, are as follows:
Ray III's Statements to Police.
Resp. Exh. H at 3-23 (footnotes omitted).
A district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court's 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). The first prong applies both to questions of law and to mixed questions of law and fact, see Williams (Terry) v. Taylor, 529 U.S. 362, 407-09 (2000), while the second prong applies to decisions based on factual determinations. See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
A state court decision is "contrary to" Supreme Court authority, that is, falls under the first clause of § 2254(d)(1), only if "the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams (Terry), 529 U.S. at 412-13. A state court decision is an "unreasonable application of" Supreme Court authority, falling under the second clause of § 2254(d)(1), if it correctly identifies the governing legal principle from the Supreme Court's decisions but "unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. The federal court on habeas review may not issue the writ "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. Rather, the application must be "objectively unreasonable" to support granting the writ. Id. at 409.
Under 28 U.S.C. § 2254(d)(2), a state court 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." See Miller-El, 537 U.S. at 340; see also Torres v. Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000).
When there is no reasoned opinion from the highest state court to consider the petitioner's claims, the court looks to the last reasoned opinion. See Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991); Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir. 2000). Thus, a federal court will "look through" the unexplained orders of the state courts rejecting a petitioner's claims and analyze whether the last reasoned opinion of the state court unreasonably applied Supreme Court precedent. See Ylst, 501 U.S. at 804-06. However, when presented with a state court decision that is unaccompanied by a rationale for its conclusions, a federal court must conduct an independent review of the record to determine whether the state-court decision is objectively unreasonable. See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). This review is not a "de novo review of the constitutional issue;" rather, it is the only way a federal court can determine whether a state-court decision is objectively unreasonable where the state court is silent. See Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "[W]here a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief." See Harrington v. Richter, 131 S.Ct. 770, 784 (2011).
As grounds for federal habeas relief, Petitioner asserts the following claims: (1) statements were used at trial that were obtained without a proper Miranda warning having been given; (2) his Sixth Amendment right to counsel was violated when a videotaped lineup was held at which counsel was not present; (3) his speedy trial rights under the Sixth Amendment were violated because trial was not held within 60 days; (4) he is actually innocent in the "string of takeover robberies" in Oakland; (5) the prosecutor committed misconduct in several different ways; (6) his Fourteenth Amendment rights were violated by the imposition of sentence enhancements that were not supported by the evidence; (7) the failure to sever his trial from that of a co-defendant, and the use of the co-defendant's statement violated his Sixth Amendment right to confront witnesses; (8) trial counsel was ineffective in several different ways; (9) appellate counsel was ineffective for failing to raise several issues on appeal; (10) the appellate court judge "changed testimony given during trial"in the appellate opinion; (11) the trial court's use of modified CALCRIM No. 3515 over his objection violated his right to due process; (12) the trial court erred by failing to instruct the jury on the law of accomplices; (13) the evidence was insufficient to support the conviction; (14) the improper admission of opinion testimony violated his right to a fair trial; (15) his statements made to police were involuntary and coerced; and (16) his sentence amounts to cruel and unusual punishment. Petition for Writ of Habeas Corpus ("Hab. Pet.") at 7-45.
The court found that Petitioner failed to exhaust state court remedies for claim 2, portions of claims 6, 7, and 8, and claim 13, and dismissed claim 4 because it was not cognizable in federal habeas, and, at Petitioner's request, dismissed portions of claims 8, 12, and 14. Order, April 15, 2011. Petitioner elected to proceed with only the exhausted claims. Order, April 18, 2012. Accordingly, Petitioner's claims 1, 3, 5, 6 (in part), 7 (in part), 8 (in part), 9, 10, 11, 13 (in part) 15, and 16 will be addressed on the merits.
Petitioner claims that the prosecution's use of statements he made in the police car while being transported to the hospital, and from the hospital to the police station, violated his constitutional rights because he was not given his Miranda warnings. Hab. Pet. at 7.
Petitioner was arrested following a high speed chase with police after robbing a 7-Eleven in Oakland. Resp. Exh. H at 19-20. At trial, Oakland police officer Martin Ziebarth testified that at the scene of the arrest, he handcuffed Petitioner, placed him in the patrol car, obtained his name and date of birth, and drove him to the hospital. Resp. Exh. B6 at 966. On the way to the hospital, and later from the hospital to the police station, Petitioner "would not stop talking," and made several potentially incriminating statements that were documented by Officer Ziebarth in a supplemental report, as described in the California Court of Appeal's opinion. Id. at 968-71, 984-88, Exh. H at 21. Officer Ziebarth further stated that the conversation was "one-sided," and that in conversing with Petitioner he was not trying to elicit any incriminating responses, but just "let him talk." Id. at 988-90.
In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court held that certain warnings must be given before a suspect's statement made during custodial interrogation can be admitted in evidence. Miranda and its progeny govern the admissibility of statements made during custodial interrogation in both state and federal courts. Id. at 443-45. Miranda requires that a person subjected to custodial interrogation be advised that "he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney." See Miranda, 384 U.S. at 444. The warnings must precede any custodial interrogation, which occurs whenever law enforcement officers question a person after taking that person into custody or otherwise significantly deprive a person of freedom of action. Id.
Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent, and also applies to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response. See Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980); see also Cox v. Del Papa, 542 F.3d 669, 676-77 (9th Cir. 2008) (finding it proper to deny suppression of defendant's spontaneous, unsolicited, and unprompted remarks made while in custody, because Miranda applies only when a suspect is subjected to interrogation).
The requirements of Miranda are "clearly established" federal law for purposes of federal habeas corpus review under 28 U.S.C. § 2254(d). See Juan H. v. Allen, 408 F.3d 1262, 1271 (9th Cir. 2005); Jackson v. Giurbino, 364 F.3d 1002, 1009 (9th Cir. 2004).
Petitioner's claim lacks merit. The record is completely devoid of any evidence that would demonstrate that Officer Ziebarth, while transporting Petitioner, was trying to elicit any incriminating statements. Likewise, Petitioner offers nothing to support a finding that his statements were the product of interrogation, rather than spontaneous, unsolicited remarks. After an independent review of the record, the court finds that the state court decision denying Petitioner's claimed Miranda violation was not objectively unreasonable. See Delgado, 223 F.3d at 982.
Petitioner claims that his Sixth Amendment right to a speedy trial was violated because his trial began after the 60-day limit established by California state law. Hab. Pet. at 7. Petitioner first raised this claim in his state habeas petition, arguing that the trial court violated his right to a speedy trial because he was not brought to trial within 60 days from when he was first held to answer the charges. Resp. Exh. I at 3. The Court of Appeal declined to review the claim because Petitioner failed to raise the issue on direct appeal. Resp. Exh. L at 1-2.
Under federal law, to determine if an accused's Sixth Amendment right to a speedy trial has been violated, the court must look to (1) the length of the delay; (2) the reason for the delay; (3) assertion of the right by the defendant; and (4) prejudice to the defendant. See United States v. Williams, 782 F.2d 1462, 1465 (9th Cir.1985). However, the threshold inquiry is whether the alleged delay was presumptively prejudicial, otherwise no need exists to inquire into the other factors. See Barker v. Wingo, 407 U.S. 514, 530 (1972).
Petitioner waived formal arraignment on November 27, 2006. Resp. Exh. A4 at 893. Jury trial commenced on January 29, 2007, which was two days after the expiration of the 60-day limit. A delay of this length is not presumptively prejudicial for Sixth Amendment purposes. See United States v. Doggett, 505 U.S. 647, 652 n. 1 (1992) (finding that a delay approaching one year is presumptively prejudicial to trigger speedy trial analysis under the Sixth Amendment). Thus, in addition to being procedurally barred under state law, Petitioner's Sixth Amendment speedy trial claim does not entitle him to federal habeas relief.
As referenced, California law allows for 60 days from the date of arraignment for a defendant to be brought to trial, see Cal. Penal Code § 1382(c)(2), and jury trial commenced two days after the expiration of the 60-day limit. To the extent that Petitioner is challenging the trial court's denial of his motion to dismiss under Cal. Penal Code § 1382(a)(2), the claim is not cognizable on federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.").
Petitioner claims that the prosecutor committed misconduct in the following different ways: (1) by failing to disclose exculpatory evidence pursuant to its obligation under Brady v. Maryland, 373 U.S. 83, 87-88 (1963); (2) by violating his right to confront and cross-examine witnesses against him because the victims of counts 1, 3, 6 and 9 did not testify or otherwise appear at the trial; (3) by redacting his co-defendant's statement to remove a portion that was favorable to him; (4) by referring to his drug use during closing argument; (5) by introducing evidence of two prior misdemeanors that resulted in convictions; (6) by suggesting that he introduced his son, Ray III, to crack cocaine; (7) by improperly vouching for a witness; (8) by referencing facts that were not in evidence during her closing argument; (9) and by knowingly using perjured testimony to obtain the conviction. Hab. Pet. at 10-15.
It appears that Petitioner's Brady claim is the only one that has been properly exhausted. However, respondent has waived the issue by addressing the merits of Petitioner's remaining claims. See United States v. Doe, 53 F.3d 1081, 1082-83 (9th Cir. 1995). The court will therefore exercise its discretion and reach the merits of Petitioner's claims. See Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998).
Petitioner claims that the prosecutor failed to disclose evidence of a similar convenience store robbery that took place in East Oakland after Petitioner was arrested and in custody on the instant charges. Hab. Pet. at 10. Petitioner refers the court to a newspaper article describing a three-man robbery of the Ed-Green convenience store in East Oakland that happened on February 24, 2007 and was captured by surveillance footage. Hab. Pet. Exh. I at 61. Petitioner contends that the article's description of the robbery, along with an accompanying photo from the surveillance camera footage, depicts a modus operandi that was sufficiently similar to the instant charges such that it triggered the prosecutor's obligation to disclose material, exculpatory evidence under Brady, and that the willful suppression of this information until after his conviction violated this obligation. Id. at 67.
In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that "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." Id. at 87. The Supreme Court has since made clear that the duty to disclose such evidence applies even when there has been no request by the accused, see United States v. Agurs, 427 U.S. 97, 107 (1976), and that the duty encompasses impeachment evidence as well as exculpatory evidence, see United States v. Bagley, 473 U.S. 667, 676 (1985).
There are three components to a Brady violation. See Benn v. Lambert, 283 F.3d 1040, 1052 (9th Cir. 2002). First, the suppressed evidence must be favorable to the accused. See Bagley, 473 U.S. at 676 (1985) citing Brady, 373 U.S. at 87. Second, the evidence must have been suppressed by the government, either willfully or inadvertently. See Agurs, 427 U.S. at 110. Third, the suppressed evidence must be material to the guilt or innocence of the defendant. See Bagley, 473 U.S. at 676-78. Evidence is deemed prejudicial, or material, only if it undermines confidence in the outcome of the trial. Id. at 676. Brady has no good faith or inadvertence defense; whether nondisclosure was negligent or by design, it is the responsibility of the prosecutor. See Gantt v. Roe, 389 F.3d 908, 912 (9th Cir. 2004). Moreover, the rule encompasses evidence "`known only to police investigators and not to the prosecutor.'" See Strickler v. Greene, 527 U.S. 263, 280-81 (1999) quoting Kyles v. Whitley, 514 U.S. 419, 438 (1995). In order to comply with Brady, therefore, "`the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in this case, including the police.'" Id. quoting Kyles, 514 U.S. at 437.
Petitioner first raised this claim in his state habeas petition. Resp. Exh. N. The California Court of Appeal, citing People v. Romero, 8 Cal.4th 728, 737 (1994), found that Petitioner failed to establish a prima facie case for relief on this ground. Resp. Exh. L at 2.
Petitioner's claim lacks merit. The Ed-Green robbery took place on February 24, 2007, and this case went to the jury on March 13, 2007. Resp. Exh. A5 at 1078. Assuming for the sake of argument that the prosecution was aware of the existence of surveillance camera footage and any accompanying photos from the Ed-Green robbery before the end of Petitioner's trial, such evidence would be favorable to Petitioner only if it could make the difference between conviction and acquittal. See Bagley, 473 U.S. at 676. This is not such a case. The evidence is not material because, even if it had been disclosed to the defense and used in as effective a manner as possible, there is not a reasonable probability that the result of the proceeding would have been different. Id. at 682. A review of the trial record indicates that the differences between the robberies defeated any inference that the Ed-Green robbers were the same robbers charged in the instant offense. Moreover, the vague similarities noted by Petitioner could match any number of robberies taking place in any location, and paled in comparison to the specific similarities between the charged counts themselves. Likewise, in denying Petitioner's post-trial motion to disclose exculpatory evidence of other robberies that took place in Oakland, the trial court noted that such evidence would have been "of limited value in establishing a defense, in view of the overwhelming evidence of the similarities of the figures stated on the surveillance tapes in this case." Resp. Exh. B9 at 1472-73.
The court agrees with the trial court's assessment of Petitioner's claim. Petitioner was apprehended following a high speed chase after being observed by a police officer running from a 7-Eleven, and was linked to the instant robberies by the statements of two co-defendants. Resp. Exh. H at 19-22. There is absolutely no evidence to suggest that the Ed-Green robbers were responsible for the crimes with which Petitioner was charged. In view of the overwhelming evidence of Petitioner's guilt, the evidence that he claims was suppressed in violation of Brady (surveillance footage and photos from the Ed-Green robbery) is not material because its disclosure would not have presented a probability sufficient to undermine confidence in the outcome of the trial. See Bagley, 473 U.S. at 676; Benn, 283 F.3d at 1053. Accordingly, the California Court of Appeal's rejection of Petitioner's Brady claims was not contrary to or an unreasonable application of federal law. See 28 U.S.C. § 2254(d).
Petitioner claims that the prosecution violated his right to confront and cross-examine witnesses against him because the victims of counts 1, 3, 6 and 9 did not testify or appear at the trial. Hab. Pet. at 10. This claim lacks merit. There is no clearly established Supreme Court authority stating that a defendant's right of confrontation requires the victims of an offense to participate in a criminal prosecution by appearing in court or otherwise attending the trial.
Petitioner claims that the court and/or the prosecution committed misconduct by redacting a portion of his co-defendant's statement that was favorable to him before it was read into the record. Hab. Pet. at 11. United States Supreme Court authority provides that, before a co-defendant's statement can be introduced into evidence against a non-testifying co-defendant, the statement must be redacted to remove any reference to the nontestifying co-defendant. See Gray v. Maryland, 523 U.S. 185, 192 (1998). In accordance with this requirement, the trial court redacted a portion of Ray III's statement referencing a pair of camouflage pants seized from the family residence, which he claimed belonged to Petitioner's daughter (his sister), and not to Petitioner. Id. Resp. Exh. B8 at 1257. Petitioner claims that this evidence was exculpatory because it contradicted the prosecution's argument that the pants belonged to him. Hab. Pet. at 11. However, the trial court specifically refused to allow Petitioner to choose to redact only inculpatory references, but not to redact exculpatory references. Resp. Exh. B8 at 1256-57. The court fails to see how the trial court's adherence to the requirements set forth by the Supreme Court amounts to misconduct on the part of either the court or the prosecution.
Petitioner claims that the prosecutor committed misconduct by telling the jury that the "motive" for his crimes was "drug use," and that such statements amount to improper argument in violation of his constitutional rights. Hab. Pet. at 12.
In his closing argument, the prosecutor suggested that drug use was a partial motive for the robberies:
Resp. Exh. B9 at 1401.
Clearly established Supreme Court authority provides that a prosecutor's improper comments violate the Constitution only if they "so infected the trial with unfairness as to make the resulting conviction a denial of due process." See Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citations omitted).
Even assuming that the prosecutor's statements during closing argument were improper, in light of the totality of the evidence presented at trial, the court cannot say the prosecutor's comments tainted the verdict and deprived Petitioner of a fair trial. Moreover, any potential prejudice that may have resulted from the prosecutor's improper comments was cured by the court's instruction to the jury that the parties' statements in their closing argument are not evidence. Resp. Exh. D at 15; see Fields v. Brown, 503 F.3d 755, 787 (9th Cir. 2007) (jurors are presumed to follow the trial court's instructions). Viewing the record in its entirety, the prosecutor's comments did not deprive Petitioner of a fair trial. See Darden, 477 U.S. at 181.
Petitioner claims that the prosecutor committed misconduct by introducing "details and circumstances" of two misdemeanor crimes that resulted in prior convictions. Hab. Pet. at 13. Petitioner's claim fails for lack of specificity. Petitioner fails to point out how these references affected his case, and fails to identify where in the record evidence to support his claim can be found. See James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) ("Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief).
Petitioner claims that the prosecutor improperly accused him of turning his "18 year old son on to smoking crack cocaine." Hab. Pet. at 13.
The prosecutor, on cross examination, asked Petitioner whether it was true that when his son turned 18, he turned him on to smoking crack. Resp. Exh. B8 at 1277. Petitioner answered that he did not. Id. The record reflects that a question was asked by the prosecutor and answered in the negative by Petitioner. There was no accusation and the jury was not asked to draw an improper inference. The court fails to see how this amounts to misconduct on the part of the prosecutor.
Petitioner claims that the prosecutor's statement that a government witness was telling the truth amounts to improper vouching. Hab. Pet. at 14.
Improper vouching can occur in a variety of circumstances, for instance: when the prosecutor places the prestige of the government behind the witness by providing personal assurances of the witness's veracity; where the prosecutor suggests that the testimony of government witnesses is supported by information outside that presented to the jury; or where the prosecutor expresses an opinion of the defendant's guilt or denigrates the defense as a sham, See United States v. Wright, 625 F.3d 583, 610 (9th Cir. 2010). "[V]ouching typically involves the prosecution bolstering the testimony of its own witness." Id. (citation omitted).
Petitioner refers the court to the prosecutor's comments during closing argument regarding the testimony of Larry Carrington, stating that Carrington testified truthfully and that his testimony was believable. Resp. Exh. 9 at 1401-02. The statements identified by Petitioner do not amount to vouching as the prosecutor did not make any personal assurances regarding the credibility of Carrington's testimony, but instead argued that the jury could infer that Carrington was telling the truth based on the totality of the evidence presented. Viewing the record in its entirety, the court finds no support for Petitioner's argument that the government's statements during closing argument constituted improper vouching.
Petitioner contends that, during closing argument, the prosecutor made several references to a pair of camouflage pants (seized from the family's RV during the execution of a search warrant) that did not belong to him, and claims that the comments were improper because they were based on facts not in evidence. Hab. Pet. at 14.
Petitioner's claim lacks merit. During his closing argument the prosecutor argued to the jury that the camouflage pants seized from the RV did not fit Carrington or Melissa (Petitioner's daughter), but did fit Petitioner. Resp. Exh. B9 at 1426-27. The pants were admitted into evidence, and the jury was familiar with the appearance of both Carrington (who testified) and Melissa (shown in videotapes and photos). Resp. Exh B7 at 977-1076, B8 at 1311-12. The prosecutor's comments were not improper as they suggested to the jury that they should draw a reasonable inference based on evidence that was properly before them.
Finally, Petitioner contends that the prosecutor knowingly used perjured testimony to secure the conviction, and deliberately suppressed evidence that would have impeached and refuted the testimony against him. Hab. Pet. at 15.
Both of these claims fail for lack of specificity. See James, 24 F.3d at 26 ("Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief).
Petitioner contends that the evidence was insufficient to support the enhancements imposed for the personal use of a firearm and personal infliction of great bodily injury. Hab. Pet at 16-20.
In Jackson v. Virginia, 443 U.S. 307, 316 (1979), the Supreme Court established the due process standard by which federal courts review a habeas corpus petition challenging the sufficiency of evidence for a state conviction. Due process requires that "no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof-defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense." Id. at 316. A state prisoner who alleges that the evidence in support of his state conviction cannot be fairly characterized as sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt states a federal constitutional claim that, if proven, entitles him to federal habeas relief. Id. at 321, 324.
A federal court reviewing a state court conviction does not determine whether it is satisfied that the evidence established guilt beyond a reasonable doubt. See Payne v. Borg, 982 F.2d 335, 338 (9th Cir. 1993). The federal court "determines only whether, `after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Id. quoting Jackson, 443 U.S. at 319. A court must apply the Jackson standard "with explicit reference to the substantive elements of the criminal offense as defined by state law." See Chein v. Shumsky, 373 F.3d 978, 983 (9th Cir. 2004) (citation omitted).
Under the Jackson standard, a conviction may be supported by logical inferences from circumstantial evidence, but the inferences cannot be merely speculative. See Sarausad v. Porter, 479 F.3d 671, 677 (9th Cir. 2007), rev'd on other grounds sub nom. Waddington v. Sarausad, 555 U.S. 179, 182 (2009); Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995). Where behavior is consistent with both guilt and innocence, the burden is on the state to produce evidence that would allow a rational trier of fact to conclude beyond a reasonable doubt that the behavior was consistent with guilt; however, the "prosecution need not affirmatively rule out every hypothesis except that of guilt." See Sarausad, 479 F.3d at 678 (citation, quotations omitted).
After passage of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a federal habeas court applies the standards of Jackson with an additional layer of deference. See Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). The Ninth Circuit has held that section 2254(d)(1) of AEDPA applies to federal review of a state court's sufficiency of the evidence determination under Jackson. Id. at 1274-75. If the state court affirms a conviction under Jackson, the federal court must decide whether the state court's application of Jackson was objectively unreasonable. See Sarausad, 479 F.3d at 677-78. The Ninth Circuit has adopted guidelines for determining whether a state court applied Jackson in an objectively unreasonable manner under section 2254(d)(1), which states as follows:
Sarausad, 479 F. 3d at 678 (citation omitted).
In contrast, section 2254(d)(2) does not apply to Jackson cases because the federal court does not decide whether the state court unreasonably determined disputed facts. Sarausad, 479 F.3d at 678. Rather, the court must decide whether the state court unreasonably applied the Jackson test. Id. at 683. Accordingly, a federal court evaluates a challenge to a state conviction on insufficient evidence grounds under section 2254(d)(1) rather than (d)(2). Id. at 678.
California Penal Code section 12022.53(b) provides that any person who personally uses a firearm when committing an enumerated felony, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years. See Cal. Penal Code § 12022.53(b). The firearm need not be operable or loaded for this enhancement to apply. Id. Circumstantial evidence alone is sufficient to support a finding that an object used by a robber was a firearm, so where a defendant commits a robbery by displaying an object that looks like a gun, the defendant's conduct and words may provide sufficient circumstantial evidence to support the enhancement. See People v. Law, 195 Cal.App.4th 976, 983 (2011).
California Penal Code section 12022.7 provides that "[a]ny person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years." See Cal. Penal Code § 12022.7. Great bodily injury "means a significant or substantial physical injury," see Cal. Penal Code § 12022.7(f), and it is well settled that this is a factual, not a legal determination. See People v. Escobar, 3 Cal.4th 740, 749 (Cal. 1992).
With respect to the firearm enhancements imposed on counts 16 and 17, the victim of the robbery described two men wearing hoods and masks that entered his store. Resp. Exh. H at 10. The taller of the two men was holding what appeared to be a shotgun, and the shorter one held a grey or silver handgun. Id. The taller man pointed the shotgun at the victim and demanded that he open the register and hand over his wallet. Id. Petitioner was later identified as the man with the shotgun. Id.
With respect to the firearm and great bodily injury enhancements imposed on count 22, the victim stated that two men entered the store, one holding what appeared to be a short-barrel shotgun, and ordered him to open the register. Id. at 12. The gunman demanded the victim's wallet, and when the victim resisted, struck him in the forehead with the weapon, drawing blood and gashing his skin to the bone, and knocking him to the floor. Id. The robbers then fled with the register cash drawer and the wallet. Id.
With respect to the firearm and great bodily injury enhancements imposed on count 23, the victim described three men that entered his store, one with a shotgun and another with a handgun. Id. at 13. The robber with the shotgun was described as white, in his 30's and about 5 feet, 7 inches tall. Id. The robber with the shotgun ordered the victim to open the register, but he was unable to do so. Id. After he finally got the register open, the robber with the shotgun struck the victim in the head with the shotgun, opening a wound that required eight staples to close. Id. at 13. Co-defendant Larry Carrington testified that he committed the robbery with Petitioner and his son, and identified Petitioner from the surveillance video as the person with the shotgun. Id.
Petitioner claims that the evidence was insufficient to support the enhancements because a shotgun was never recovered, and the victims' varying descriptions of the robbers did not definitively identify him as the assailant who possessed the shotgun or inflicted great bodily injury. Hab. Pet. at 16-17. These claims lack merit. A firearm enhancement under Cal. Penal Code § 12022.5 is appropriate where the defendant menacingly displays a firearm during the course of a robbery. See Ballard v. Estelle, 937 F.2d 453, 457 (9th Cir. 1991). The fact that a shotgun was never recovered is immaterial, as circumstantial evidence alone is sufficient to support the enhancement under California law. See Law, 195 Cal. App. 4th at 983. Moreover, there is no doubt that, under the facts presented at trial, the jury reasonably determined that the victims suffered great bodily injury.
Petitioner correctly points out that the victims' varying descriptions of the robbers do not definitively identify him as the robber with the shotgun, or the robber who inflicted great bodily injury. However, in counts 16 and 17, Petitioner was identified by the victim as the man with the shotgun, and in count 23, Carrington identified Petitioner from surveillance footage as the robber with the shotgun. Resp. Exh. H at 10, 13. Both witnesses were subject to cross examination, and counsel was able to attack the victim's identification, and expose Carrington's motive to lie. Resp. Exh B3 at 469-475, B7 at 1031-32. The jury was presented with arguments from both sides, and assessed the witnesses credibility accordingly. Based on the evidence presented at trial, and in view of the double layer of deference required by Jackson and AEDPA, the court cannot grant relief.
Viewing the evidence in the light most favorable to the prosecution, the record supports the conclusion that any rational trier of fact could have found the essential elements to support the enhancements beyond a reasonable doubt. See United States v. Herrera-Gonzalez, 263 F.3d 1092, 1095 (9th Cir. 2001). The state court's determination that there was sufficient evidence to support the jury's finding of true on the firearm and great bodily injury enhancements was not contrary to, or an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d)(1); Jackson v. Virginia, 443 U.S. 307, 316 (1979).
Petitioner claims that admission of a co-defendant's (Ray III) redacted statement violated his Sixth Amendment right of confrontation. Hab. Pet. at 21.
The California Court of Appeal addressed this claim as follows:
Resp. Exh. B6 at 1164.
Petitioner alleges that the state court's decision was contrary to clearly established federal law, claiming that, despite the redaction, he was "directly implicated" by Ray III's statement in two specific instances. Hab. Pet. at 23. First, a portion of the statement that was read to the jury left in a reference to Ray III's "dad" as the person driving the RV that Ray III and Carrington used to flee the scene of one of the robberies and; second, the discussion regarding a defense motion for a mistrial contained a lengthy reference to Petitioner. Resp. Exh. B8 at 1194, 1258. The second instance referred to by Petitioner was not part of Ray III's statement and took place outside the presence of the jury, therefore it does not implicate Petitioner's right to confrontation. The first instance arguably violates the Sixth Amendment because, even though it doesn't demonstrate that Petitioner participated in the robbery itself, the jury could infer guilt based on the fact that he was the driver of the getaway vehicle. Resp. Exh. B8 at 1194, see Gray v. Maryland, 523 U.S. 185, 195-97 (1998).
However, in light of the relatively minor nature of the reference, any potential harm that it caused was cured by the court's instruction that statements made by Ray III could only be considered against him and not against Petitioner. Resp. Exh. A5 at 1151; see Fields v. Brown, 503 F.3d 755, 787 (9th Cir. 2007) (jurors are presumed to follow the trial court's instructions). On this record, the court finds that any error was harmless because it did not have "a substantial and injurious effect or influence in determining the jury's verdict." See Brecht v. Abrahamson, 507 U.S. 619, 638 (1993).
Petitioner alleges that both trial and appellate counsel were ineffective in several different ways. Hab. Pet. at 24-30.
In order to succeed on an ineffective assistance of counsel claim, the Petitioner must satisfy the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984), which requires him to show deficient performance and prejudice. Deficient performance requires a showing that trial counsel's representation fell below an objective standard of reasonableness as measured by prevailing professional norms. See Wiggins v. Smith, 539 U.S. 510, 521 (2003). To establish prejudice, Petitioner must show a reasonable probability that "but for counsel's unprofessional errors, the result of the proceeding would have been different." See Strickland, 466 U.S. at 694. If a Petitioner cannot establish that defense counsel's performance was deficient, it is unnecessary for a federal court considering a habeas ineffective assistance claim to address the prejudice prong of the Strickland test. See Siripongs v. Calderon, 133 F.3d 732, 737 (9th Cir. 1998).
The Due Process Clause of the Fourteenth Amendment guarantees a criminal defendant the effective assistance of counsel on his first appeal as of right. See Evitts v. Lucey, 469 U.S. 387, 391-405 (1985). Claims of ineffective assistance of appellate counsel are reviewed according to the standard set out in Strickland, 466 U.S. 668 (1984). See Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989). Appellate counsel does not have a constitutional duty to raise every nonfrivolous issue requested by defendant. See Jones v. Barnes, 463 U.S. 745, 751-54 (1983). The weeding out of weaker issues is widely recognized as one of the hallmarks of effective appellate advocacy. Id. at 751-52.
Because the California Supreme Court summarily denied the petition with no explanation, the court must conduct an independent review of the record to determine whether its decision denying Petitioner's claims of ineffective assistance of counsel was objectively unreasonable. See Delgado, 223 F.3d at 982.
Petitioner claims that, in counts 1, 3, 6, 9, and 19, trial counsel should have objected, on confrontation clause grounds, to the prosecution's failure to call the victims of those crimes as witnesses. Hab. Pet. at 25.
As discussed supra in section III B., there is no clearly established Supreme Court authority stating that a defendant's right of confrontation requires the victims of an offense to participate in a criminal prosecution by appearing in court or otherwise attending the trial. In some situations, such as murder trials, it would not even be possible. Counsel was not ineffective for failing to raise a meritless argument. See Moormann v. Ryan, 628 F.3d 1102, 1110 (9th Cir. 2010) quoting Boag v. Raines, 769 F.2d 1341, 1344 (9th Cir.1985) ("Failure to raise a meritless argument does not constitute ineffective assistance."). Accordingly, the state court's decision denying relief on this claim was not objectively unreasonable.
Petitioner claims that trial counsel failed to confer with him, keep him informed, and "elicit matters of defense." Hab. Pet. at 26. Specifically, Petitioner contends that counsel only met with him twice, each time for less than 15 minutes. Id. In the first meeting, they discussed a plea offer of 28 years, which Petitioner declined, and in the second meeting counsel asked Petitioner not to testify, a request which he ignored. Id. Even assuming that counsel's performance was deficient for failing adequately to confer with Petitioner and to keep him reasonably informed of developments in his case, Petitioner's claim fails for lack of prejudice because he cannot demonstrate a reasonable probability that the result of the proceeding would have been different had counsel met with him more often. See Strickland, 466 U.S. at 694. The state court's decision denying relief on this claim was not objectively unreasonable.
Petitioner states that several prosecution witnesses provided favorable, exculpatory testimony describing a robber as either "a black guy," "black," or "hispanic," all descriptions that did not fit him. Hab. Pet. at 26., Resp. Exh. B5 at 653, B6 at 757, 760, 762. Petitioner claims that trial counsel "never objected, or asked for a limiting instruction to bar the prosecution from admitting evidence that was NOT cross-admissible on the issue of identity," and that counsel failed to object on grounds of relevance-thereby affecting the outcome of the trial. Hab. Pet. at 26. The allegation is vague and conclusory, as Petitioner fails to identify how he was prejudiced by counsel's failure to take these steps. See James, 24 F.3d at 26 ("Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief"). The state court's decision denying relief on this claim was not objectively unreasonable.
At the preliminary hearing, a note was found in Petitioner's sock which he claims was a signed admission of guilt authored by a co-defendant. Hab. Pet. at 27. Petitioner states that trial counsel was aware that someone other than him claimed authorship of the note, and argues that counsel was ineffective for failing to bring the signed confession to the jury's attention as evidence of his innocence. Id.
The facts underlying this claim are as follows: On cross-examination the prosecutor asked Petitioner whether he wrote the note that was taken from his sock. Resp. Exh. 8 at 1312-13. Petitioner testified that he did not write the note, and that someone handed it to him on the prison bus on the way to the hearing. Id. at 1313. He stuffed it in his sock and did not get the chance to read it before it was taken from him. Id. The prosecutor read the note to Petitioner, and he confirmed its accuracy. Id. at 1313-15. The note appeared to be directed toward his son, Ray III, asking him to "stay strong"and to tell the investigators "it wasn't me." Id. at 1314. The note also said, "If you do take this, I will owe you forever," and "all you got to do is not to tell them cops anything." Id. at 1314-15. When asked by the prosecutor, Petitioner specifically denied that he wrote the letter to his son. Id. at 1315.
Petitioner alleges that a co-defendant (presumably his son) signed "an admission of guilt" that he authored the note, and that trial counsel was aware of this signed confession yet failed to introduce it into evidence. Hab. Pet. at 27. Petitioner has failed to produce any evidence, either here or in his state habeas petition, that would support his bare allegation that someone other than he claimed to have written the note. Petitioner's unverifiable and unsupported claim cannot support habeas relief. See James, 24 F.3d at 26 ("Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief."). The state court's decision denying relief on this claim was not objectively unreasonable.
Petitioner claims that trial counsel was ineffective for calling no witnesses on his behalf. Hab. Pet. at 27. The court previously determined that this claim was exhausted as to only one witness, Christina Miller. Order, April 15, 2011.
In his state habeas petition, Petitioner alleges that Miller, one of the victims in count 3, told police that all three men were African-American. Hab. Pet., Exh. H at 29. Petitioner claims that her testimony would have helped the defense because her description of the robbers was inaccurate, therefore counsel should have compelled her attendance at trial. Id.
In support of this contention, Petitioner directs the court's attention to the appendix, however no appendix was attached. Id. On this basis alone, the court Petitioner's claim lacks merit. However, assuming for the sake of argument that Petitioner's account of Miller's statement is accurate, counsel's strategic decision not to call her as a witness was nevertheless reasonable, as there is no indication from this statement alone that her testimony would have been favorable to the defense, and could in fact have been harmful to his defense. Defense counsel is empowered to make such strategic decisions, so long as they are reasonable and informed. See Jennings v. Woodford, 290 F.3d 1006, 1014 (9th Cir. 2002). Miller's description of the robbers could have been inaccurate for any number of reasons, including the fact that she was being terrorized at gunpoint, because the robbers were wearing masks, or because her memory was faulty. Resp. Exh. H at 3. Alternatively, she could have been a particularly sympathetic victim. Petitioner fails to explain how exactly Miller's testimony would have helped his defense, aside from the observations that as to this one charge, the victim's description was shaky and uncertain. "A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." Strickland, 466 U.S. at 690. The state court's decision denying relief on this claim was not objectively unreasonable.
Petitioner argues that trial counsel provided ineffective assistance at sentencing by (1) failing to contest the restitution alleged in counts two and three; and (2) for failing to argue mitigating facts. Hab. Pet. at 27.
Petitioner's claim lacks merit. There is no clearly established Supreme Court precedent by which to evaluate counsel's performance in noncapital sentencing cases. See Davis v. Grigas, 443 F.3d 1155, 1158 (9th Cir. 2006); Cooper-Smith v. Palmateer, 397 F.3d 1236, 1244 (9th Cir. 2005).
In any case, Petitioner's argument that the restitution amount set by the court is greater than the reported loss fails, as it is apparently based on the store manager's statement provided to police. The probation officer's report indicates that the total amount of loss suffered by Long's Drugs was roughly $50,000, and the amount attributable to Petitioner from the robbery in counts two and three is more than $30,000. Resp. Exh. A5 at 1227. Petitioner offers no evidence to show that the probation officer's report is incorrect. Based on this calculation, counsel had no basis for objecting, as the court's order that Petitioner pay restitution in the amount of $25,000 was entirely reasonable.
Additionally, Petitioner fails to identify the mitigating factors that counsel should have presented. Counsel argued for a middle-term sentence, based on the fact that there were no aggravating factors, scant evidence of planning, and nothing to indicate that Petitioner forced the others to participate. Resp. Exh. B9 at 1478-79. Petitioner presented his own mitigating arguments in his prepared statement to the court. Id. at 1479. Finally, the court, in arriving at the sentence, considered all the factors in mitigation, in particular the fact that Petitioner's criminal history was relatively minor, and that he may have been influenced by drugs and alcohol. Id. at 1480. There is no indication that counsel failed to present any mitigating factors that were requested by Petitioner.
Petitioner contends that trial counsel was ineffective for failing to object to the imposition of an enhancement for the use of a deadly weapon (knife) in counts 26 and 27, because it was not pled in the information. Hab. Pet. at 28.
The factual basis for this claim is incorrect as the information alleged a firearm enhancement in counts 26 and 27, not a knife use enhancement. Resp. Exh. A4 at 930-932. The firearm allegations were both found true by the jury. Resp. Exh. A5 at 1114-15.
Petitioner claims that trial counsel was ineffective for not objecting when the victim in counts 16 and 17 identified him in court after failing to do so in a pretrial lineup. Hab. Pet. at 29.
Stephen McManus was a customer in the South Shore Liquor Store when it was robbed on June 23, 2006. Resp. Exh. H at 10. McManus was unable to identify Petitioner in separate pretrial police lineups, but identified him in court based on his complexion, the shape of his face, the area around his eyes, the color of his hair, and his height. Id.
Petitioner argues that McManus, after failing to identify him in pretrial lineups, should not have been permitted to make an in-court identification. Hab. Pet. at 29. Petitioner's claim lacks merit. Trial counsel made a reasonable strategic decision not to try and exclude McManus's testimony and instead to impeach his in-court identification with prior non-identifications. Defense counsel is empowered to make such strategic decisions, so long as they are reasonable and informed. See Jennings v. Woodford, 290 F.3d 1006, 1014 (9th Cir. 2002). Counsel's performance in this regard was not deficient. Even assuming that counsel's performance was deficient for failing make this objection, Petitioner's claim fails for lack of prejudice because he cannot demonstrate a reasonable probability that the result of the proceeding would have been different had Petitioner not been allowed to make the in-court identification. See Strickland, 466 U.S. at 694.
Petitioner claims that appellate counsel was ineffective for failing to challenge "the illegal lineup held without counsel present." Hab. Pet. at 30. The essence of this claim is that Petitioner's Sixth Amendment right to counsel was violated when the Oakland police conducted a physical lineup before Petitioner was appointed counsel. Hab. Pet. Exh. H at 11, Exh. I at 35.
Petitioner's claim lacks merit, as he was not positively identified from any pretrial lineup. Therefore there was no in-court identification that was tainted by a prejudicial police lineup procedure. See United States v. Wade, 388 U.S. 218, 227 (1967). Even if an in-court identification was the product of a prejudicial lineup, trial counsel could reasonably have concluded that the in-court identification was not harmful to the defense because it could be impeached by the witness's prior non-identification. Because the claim raised by Petitioner lacks merit, appellate counsel's failure to raise the issue on appeal was neither deficient nor prejudicial under the Strickland standard. See Rhoades v. Henry, 638 F.3d 1027, 1036 (9th Cir. 2011). Appellate counsel was not ineffective for failing to challenge the lineup.
Petitioner claims that appellate counsel was ineffective for failing to challenge count 22, in which he was sentenced to sixteen years for robbery, three years for a great bodily injury enhancement, and ten years for the personal use of a firearm enhancement. Hab. Pet. Exh. H at 9. Specifically, Petitioner claims that he should have been exonerated by victim testimony describing men of a different race than him. Id.
Petitioner's contention lacks merit. On direct appeal, appellate counsel specifically challenged the sufficiency of the evidence to support Petitioner's conviction on count 22 based on the lack of credible identification evidence. Resp. Exh. E at 34. The California Court of Appeal acknowledged that there was no direct evidence of Petitioner's identity as one of the robbers, and that his guilt was established by circumstantial evidence. Nevertheless, the court rejected this claim, finding that under the totality of the circumstances the evidence circumstantially established Petitioner's identity as the robber, notwithstanding the fact that witnesses were unsure of the race of the two men. Resp. Exh. H at 42-50. Accordingly, there is no basis for Petitioner's claim that appellate counsel was ineffective for failing to challenge this count.
Petitioner claims that appellate counsel was ineffective for failing to raise a confrontation clause challenge to those counts where the victims failed to appear. Hab. Pet. Exh. I at 35. This claim was already presented as a claim of prosecutorial misconduct, supra, in section III B., and as a claim of ineffective assistance of trial counsel, supra, in section VI B.i. The claim fails here for the same reasons.
Petitioner claims that the California Court of Appeal's opinion misstated the testimony that was presented at trial. Hab. Pet. at 31. In describing the July 10, 2006 robbery of a 7-Eleven store in Oakland, the court wrote, "witnesses were unsure of the race of the two men." Resp. Exh. H at 46. The record reflects that victim Francis Shelley described the first robber as being hispanic or black, based upon the amount of skin visible between his bandana and sunglasses. Resp. Exh. B5 at 653. Victim Rita Thapa described the first robber as six foot tall and black, or "something like that." Resp. Exh. B6 at 757. However, he had a handkerchief covering his face and was wearing gloves and a hat. Id. at 757-58.
Petitioner's argument lacks merit. A review of the record indicates that neither witness was positive of their identification due to the fact that the robbers obscured their appearance with bandanas, gloves, hats, and hoodies. Resp. Exh. B5 at 653, B6 at 758-59. The language used in the state court opinion was entirely consistent with the witness's testimony that the robber was a dark-skinned individual of unknown race.
Petitioner contends that the trial court erred by giving a modified version of CALCRIM 3515. Hab. Pet. at 32.
In rejecting this claim, the California Court of Appeal stated as follows:
Resp. Exh. H at 54-56 (emphasis added).
The formulation of jury instructions is a question of state law and is not cognizable in habeas proceedings. See Estelle, 502 U.S. at 67-68. A faulty jury instruction will constitute a violation of due process only where the instruction by itself infects the entire trial to such an extent that the resulting conviction violates due process. See Hendricks v. Vasquez, 974 F.2d 1099, 1106 (9th Cir. 1992) citing Cupp v. Naughten, 414 U.S. 141, 147 (1973). Whether a constitutional violation has occurred will depend upon the evidence in the case and the overall instructions given to the jury. See Duckett v. Godinez, 67 F.3d 734, 745 (9th Cir. 1995). Where a given jury instruction is ambiguous, a reviewing court must determine whether there is a "reasonable likelihood" that the jury was misled. See Murtishaw v. Woodford, 255 F.3d 926, 967 (9th Cir. 2001).
Petitioner argues that the court's modification of CALCRIM 3515 deprived him of a fair trial because the instruction, as modified, failed to provide the jury with any guidance as to how to properly consider evidence of other crimes to show identity. Hab. Pet. at 32-34, Resp. Exh. B at 59.
Petitioner's argument lacks merit. The state court answered this precise question in the negative, concluding that, under California law, "the trial court has no sua sponte duty to give a limiting instruction on cross-admissible evidence in a trial of multiple crimes." Resp. Exh. H at 28. Moreover, there is no clearly established law providing that a state court violates due process by instructing a jury that they may consider evidence that is admissible on other counts to establish pattern, intent, identity, or modus operandi, as cross admissible to establish that person's guilt on other offenses that have been appropriately joined in the same charging document. Petitioner fails to identify, and the record does not reflect, any instance where the jury may have applied the modified version of CALCRIM 3515 in such a way as to convict Petitioner of offenses based on evidence that was otherwise inadmissible, or upon a lowered standard of proof. See Gibson v. Ortiz, 387 F.3d 812, 822 (9th Cir. 2004) (finding constitutional error where the jury is instructed that they can convict based on a preponderance of the evidence standard) overruled on other grounds by Byrd v. Lewis, 566 F.3d 855, 866 (9th Cir. 2009). Viewed in the context of the jury instructions and the record as a whole, the trial court's giving of CALCRIM 3515 did not violate due process. See Estelle, 502 U.S. at 72. Accordingly, the state court's decision was not contrary to or an unreasonable application of clearly established federal law, as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d).
As limited by the court's April 18, 2012 Order, Petitioner challenges the sufficiency of the evidence in counts 2/3, 8/9, 15, 18/19, 20, 22, and 25. Hab. Pet. at 36-38.
As set forth in Section IV, supra, a federal court reviewing a state court conviction does not determine whether the evidence established guilt beyond a reasonable doubt, but determines only "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." See Jackson, 443 U.S. at 319.
The state court, applying the Jackson standard, examined the entire record in a light most favorable to the judgment, and determined that, under the totality of the circumstances, the evidence established Petitioner's identity as one of the robbers in the challenged counts. Resp. Exh. H at 44.
There was no direct evidence that Petitioner participated in the robberies as to the challenged counts, but the prosecution was able to convince the jury of his guilt through circumstantial evidence. Petitioner argues that this evidence was insufficient to prove his guilt because the crimes did not share a similar modus operandi, and the varying descriptions provided by the victims did not establish his identity as one of the robbers. Hab. Pet. at 36-38. In support of his argument, Petitioner notes the following: In counts 2 and 3, the store manager described two of the robbers as black and one as white; in counts 8 and 9, the clerk testified that he thought one of the robbers was white; in count 15, the victim identified one of the two robbers as white by the color of his eyes; in count 20, the store clerk described the two robbers as either white or hispanic; in count 22, the victim stated that one of the two robbers was hispanic or black; and in count 25, the clerk identified both robbers as white based on their speech and the color of the skin around their eyes. Hab. Pet. at 37-38.
Petitioner's reliance on the victims' inability to consistently identify the race of the robbers is misplaced. As Petitioner himself notes, the "suspects were unidentifiable because the suspects wore various clothing and disguises," which included hoodies, masks, and bandanas. Hab. Pet. at 36. As such, there is no reason that the victims should have been able to conclusively identify Petitioner as one of the robbers. However, the prosecution was able to present evidence of the similarity between the various robberies without limitation, therefore the jury was able to consider the evidence presented as to all counts in deciding whether a specific count had been proven beyond a reasonable doubt. Resp. Exh. H at 28.
Based on the totality of the evidence presented at trial, a rational trier of fact could have easily concluded that Petitioner was one of the robbers that committed the offenses described in the challenged counts. Petitioner was arrested fleeing from the scene of a convenience store robbery with his son in a stolen Honda, after taking the cash drawer and cigarettes. Resp. Exh. H at 48. Petitioner admitted to this robbery and to some others, and inferentially admitted that he knew who was responsible for the other robberies. Id. The jury also heard evidence that Petitioner attempted to dissuade Carrington from testifying against him, and sought to have his son falsely exculpate him. Id. The robberies were primarily of convenience stores, and the items taken were usually money, cigarettes, and lottery tickets. Id. at 28. Surveillance footage revealed similar looking men wearing similar clothing in each of the robberies, and Carrington identified Petitioner from surveillance footage as one of the robbers in several of the uncontested counts. Id. at 47-48. Although the robberies did not share an identical modus operandi, there were sufficient similarities between them to allow a reasonable jury to conclude that Petitioner was one of the robbers that participated in the challenged counts.
Viewing the evidence in the light most favorable to the prosecution, the record supports the conclusion that a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Herrera-Gonzalez, 263 F.3d at 1095. The state court's determination that there was sufficient evidence to support the jury's verdict on the challenged counts was not contrary to, or an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d)(1); Jackson, 443 U.S. at 316.
Petitioner challenges the admission of two sets of statements: (1) statements he made to an Oakland police officer who transported him to the hospital, and later to the police station, following his arrest; and (2) statements made to interviewing officers at the police station. Hab. Pet. at 40-41. Petitioner claims that both sets of statements were coerced and obtained in violation of his rights under Miranda. Hab. Pet. at 41.
Petitioner's claim regarding the statements he made to the transporting officer is a restatement of his first claim, which was considered and rejected in Section I, supra. Petitioner's claim regarding the second set of statements is addressed below.
Sergeant George Phillips, a robbery investigator for the Oakland Police Department testified at a pretrial hearing on the admissibility of both defendants statements to police. Resp. Exh. B1 at 13-102. Phillips testified that, after their arrest, both defendants were taken to the hospital and treated for their injuries, and then transported to the Oakland Police Department. Id. at 20-21, 78. Petitioner was placed in an interview room at 3:00 a.m, but his interview did not begin until 10:57 p.m. Id. at 21, 64. In the meantime, Petitioner was allowed to use the restroom, eat, and sleep. Id.
Investigators began the interview by eliciting background information from Petitioner before reading him his Miranda rights. Id. at 95-96. After waiving his Miranda rights, Petitioner gave a recorded statement in which he admitted to committing the 7-Eleven robbery for which he was apprehended fleeing the scene, along with his son. Id. at 56, 58-59. After the recording was turned off, Petitioner admitted that he was responsible for some, but not all of the other robberies. Id. at 61. Shortly after this admission, Petitioner asked for a lawyer. Id. at 62. At this point investigating officers stopped all questioning and gathered their materials to leave, but Petitioner kept talking-blaming people in an area where he used to live on Pearl Street in Oakland for some of his actions, and for making his actions look worse than they seemed. Id. at 62-63, 99.
Petitioner testified that investigating officers began the interview by informing him that he was under arrest for robbery and was a suspect in numerous other robberies in Oakland. Id. at 117. However, other than the 7-Eleven robbery in which he was apprehended with his son, Petitioner denied telling investigators that he was involved in any of the other robberies, and did not admit to making any statements after invoking his right to counsel. Id. at 119-121.
The trial court noted that there was no issue with regard to the Miranda admonition itself. Id. at 129. The court went on to find that the statements made by Petitioner, both before and after the invocation of his right to counsel, were all admissible because the earlier statements were made while the Miranda waiver was in effect, and the latter statements were spontaneous remarks that were not made in response to interrogation. Id. at 129.
The requirements of Miranda are set forth in Section I B., supra, and are "clearly established" federal law for purposes of federal habeas review under 28 U.S.C. § 2254(d). See Juan H., 408 F.3d at 1271; Jackson, 364 F.3d at 1009.
Petitioner contends that his statements were rendered involuntary because investigating officers exerted "psychological pressure" by holding him in an interview room for "at least 20 hours" before reading him his Miranda rights, and keeping him "incommunicado and isolated from family, friends, and his lawyer." Resp. Exh. N, Hab. Pet. at 40. Petitioner's claim lacks merit. In cases involving psychological coercion, "the pivotal question . . . is whether, in light of the totality of the circumstances, the defendant's will was overborne when the defendant confessed." See Ortiz v. Uribe, 671 F.3d 863, 869 (9th Cir. 2011) (citations, quotations omitted). Although Petitioner was detained for close to 20 hours before he was interviewed, the record reflects that he was taken to the bathroom 14 times, allowed to sleep, and was given food and water during that time. Resp. Exh. B1 at 64. Aside from background questions, no interrogation took place prior to Miranda warnings being given. Resp. Exh. B1 at 95-96. Once Petitioner invoked his right to counsel, investigators ceased all questioning, and the subsequent statements made by Petitioner were spontaneous and unprompted, and not the product of interrogation. Id. at 62-63. Based on the totality of the circumstances, Petitioner's will was not overborne when he made the statements to investigating officers. See Uribe, 671 F.3d at 869.
After an independent review of the record, the court finds that the state court decision denying Petitioner's challenge to the admission of his statements was not objectively unreasonable. See Delgado, 223 F.3d at 982.
Petitioner claims that his sentence of 38 years and 4 months constitutes cruel and unusual punishment. Hab. Pet. at 42. The Court of Appeal found that Petitioner forfeited this argument by failing to raise it on direct appeal. Resp. Exh.L at 1. Notwithstanding Petitioner's failure to raise the issue on direct appeal, the court will exercise its discretion and reach the merits of his claim. See Boyd, 147 F.3d at 1127.
Outside of the capital punishment context, the Eighth Amendment prohibits only sentences that are extreme and grossly disproportionate to the crime. See United States v. Bland, 961 F.2d 123, 129 (9th Cir. 1992) quoting Harmelin v. Michigan, 501 U.S. 957, 1001 (1991). Such instances are "exceedingly rare" and occur in only "extreme" cases. See Lockyer v. Andrade, 538 U.S. 63, 72-73 (2003); Rummel v. Estelle, 445 U.S. 263, 272 (1980). So long as a sentence does not exceed statutory maximums, it will not be considered cruel and unusual punishment under the Eighth Amendment. See United States v. Mejia-Mesa, 153 F.3d 925, 930 (9th Cir. 1998).
Petitioner contends that, in light of his relatively minor criminal history, his sentence is cruel and unusual in that he will serve 32 years in prison before he will become eligible for parole. Hab. Pet. at 42.
Petitioner's claim lacks merit. Although he received a severe sentence, "outside the context of capital punishment, successful challenges to the proportionality of particular sentences will be exceedingly rare." See Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994) quoting Solem v. Helm, 463 U.S. 277, 289-90 (1983). Here there is no basis for finding that Petitioner's sentence is grossly disproportionate to his offense. Petitioner was convicted of 21 counts of robbery with enhancements for use of a firearm and inflicting great bodily injury. Over a period of over 13 months, Petitioner and his family engaged in a violent crime spree robbing a variety of establishments in the East Bay, that only came to an end following a dangerous, high speed chase with Oakland police officers while fleeing the scene of their last robbery. Petitioner occupied a position of leadership and exerted a great deal of influence over the other participants, which included his son and his daughter-both minors. The trial court properly weighed the aggravating and mitigating factors before sentencing Petitioner to a term of imprisonment that was within the statutory maximum. Resp. Exh. B9 at 1480-81. The aggregate of the consecutive sentences imposed was 67 years. Based upon Penal Code section 1170.1(a), one-third of those 67 years was imposed to be served consecutive to the sentence imposed on Count 22 for a total term of 38 years and 4 months. Under these circumstances, Petitioner's claim that his sentence constitutes cruel and unusual punishment fails, regardless of whether it is procedurally barred.
For the foregoing reasons, the Court DENIES the Petition for Writ of Habeas Corpus as to all claims. A certificate of appealability will not issue. Reasonable jurists would not "find the district court's assessment of the constitutional claims debatable or wrong." See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Petitioner may seek a certificate of appealability from the Court of Appeals. The Clerk shall enter judgment in favor of Respondent and close the file.
