SUSAN ILLSTON, District Judge.
Scott Edgar Dyleski ("petitioner"), a prisoner currently housed at California State Prison Corcoran, filed the present petition before the Court challenging his 2005 state court conviction. Petitioner seeks a federal writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Court has carefully reviewed and considered petitioner's request. Petitioner's ineffective assistance of counsel (trial and appellate), prosecutorial misconduct, and cumulative error arguments are DENIED for the reasons that follow. The Court will STAY the action so that petitioner may return to state court to assert his unexhausted challenges to his sentencing.
Petitioner was convicted in Contra Costa County Superior Court of first degree murder and was found to have committed the murder while engaged in the commission or attempted commission of residential burglary. He was sentenced to life in prison without the possibility of parole ("LWOP"). The following factual background is taken from the order of the California Court of Appeal:
People v. Dyleski, No. A115725, 2009 WL 1114077, at *1-14 (Cal. Ct. App. April 27, 2009).
Petitioner appealed and the California Court of Appeal affirmed petitioner's conviction in a reasoned opinion. Dkt. No. 17-2, Exhs. 6, 9.
On May 23, 2011, petitioner filed a petition for writ of habeas corpus in the Contra Costa County Superior Court, and the petition was denied without prejudice on June 16, 2011. Dkt. No. 17-2, Exhs. 12, 13. Petitioner filed an amended petition in the superior court on August 12, 2011. Dkt. No. 17-2, Exh. 14. The trial court denied this petition in a 34-page opinion on October 10, 2011. Dkt. No. 17-2, Exh. 15.
Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal on December 28, 2011, and it was denied on July 2, 2012. Dkt. No. 17-2, Exhs. 16, 19. He filed a petition in the California Supreme Court on October 2, 2012. Dkt. No. 17-2, Exh. 20. On October 16, 2012, he filed the present petition in this Court and moved for a stay pending the California Supreme Court's decision. Dkt. Nos. 1, 4.
On March 13, 2013, the California Supreme Court denied the petition without prejudice to petitioner filing an original petition in the superior court for any relief to which he might be entitled following the outcome of People v. Gutierrez, 324 P.3d 245 (Cal. 2014). Dkt. No. 17-2, Exh. 21. (The opinion in Gutierrez ultimately issued on May 4, 2014.) Petitioner represented that a final decision had been reached on his unexhausted claims and moved to lift the stay on April 10, 2013. Dkt. No. 7. Respondents did not oppose this motion. The Court granted the motion and issued an order to show cause on August 7, 2013, finding that the following claims, liberally construed, warranted a response:
Dkt. No. 8.
On October 15, 2013, petitioner filed a motion for summary judgment, which he amended on October 16, 2013. Dkt. Nos. 10, 12. The Court denied petitioner's summary judgment motion on November 13, 2013. Dkt. No. 15. Respondents filed an answer on December 19, 2013, stating that petitioner had exhausted his state remedies for the claims in his petition. Dkt. No. 17 at 2. Petitioner timely filed a traverse. Dkt. No. 19.
This Court has subject matter jurisdiction over this habeas action for relief pursuant to 28 U.S.C. § 2254. 28 U.S.C. § 1331. Venue is proper because the challenged conviction occurred within this judicial district in Contra Costa County, California. 28 U.S.C. §§ 84(a), 2241(d).
Prisoners in state custody who wish to challenge collaterally either the fact or length of their confinement in federal habeas proceedings are required first to exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1)(A); Baldwin v. Reese, 541 U.S. 27, 29 (2004). "An applicant shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(b)(3).
Prisoners may advance such challenges either on direct appeal or through collateral proceedings by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b)-(c).
Petitioner has exhausted claims one through four, set out above. For reasons explained in Part V of this order, petitioner has not presently exhausted claim five, his claim challenging the constitutionality of California Penal Code § 190.5. He must first pursue his state law remedy for resentencing pursuant to the United States Supreme Court's decision in Miller v. Alabama, 132 S.Ct. 2455 (2012), the California Supreme Court's decision in People v. Gutierrez, 58 Cal.4th 1354 (Cal. 2014), the United States Supreme Court's decision in Montgomery v. Louisiana, 136 S.Ct. 718 (2016), the California Court of Appeal's decision in People v. Berg, 2016 WL 2854322 (Cal. Ct. App. May 12, 2016), and the forthcoming California Supreme Court decision in In re Kirchner, 244 Cal.App.4th 1398 (Cal. App. 2016), review granted, 2016 WL 2908028 (Cal. May 18, 2016).
An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"):
28 U.S.C. § 2254(d).
For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the last reasoned state court decision. Greene v. Fisher, 132 S.Ct. 38, 44 (2011); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).
A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640 (2003).
Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams (Terry) v. Taylor, 529 U.S. 362, 413 (2000). "[A] federal habeas court 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. Rather, that application must also be unreasonable." Williams (Terry) v. Taylor, 529 U.S. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409.
The court looks to the last reasoned state court decision as the basis for the state court judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc) (citing Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991)).
"When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington v. Richter, 562 U.S. 86, 99 (2011). A summary denial is presumed to be a denial on the merits of the petitioner's claims. Stancle v. Clay, 692 F.3d 948, 957 & n.3 (9th Cir. 2012).
Petitioner alleges that he received ineffective assistance of trial counsel because counsel failed to: (1) develop exculpatory inconsistencies in the prosecution's theory of the case; (2) failed to present evidence implicating a third party in the crime; (3) failed to present evidence of crime scene contamination; (4) failed to seek exclusion of prejudicial evidence; (5) failed to challenge expert testimony; and (6) failed to challenge the charging information through a § 995 motion. See Dkt. No. 1-1 at 45, 47, 181.
Different iterations of petitioner's ineffective assistance of trial counsel claims were presented on habeas to the Contra Costa County Superior Court and the California Court of Appeal. Petitioner's ineffective assistance of trial counsel claim was presented in its current form to the California Supreme Court. The California Supreme Court summarily denied this claim. Dkt. No. 17-2 at 21. The parties agree that petitioner has exhausted this claim. Dkt. No. 17 at 2; Dkt. No. 7.
The Sixth Amendment guarantees not only assistance, but effective assistance, of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result." Id. The right to effective assistance of counsel applies to the performance of both retained and appointed counsel without distinction. See Cuyler v. Sullivan, 446 U.S. 335, 344-45 (1980).
In order to prevail on a Sixth Amendment ineffective assistance of counsel claim, petitioner must satisfy a two-prong test. First, he must establish that counsel's performance was deficient. A deficient performance is one that falls below an "objective standard of reasonableness" under prevailing professional norms. Strickland, 466 U.S. at 687-88. Second, he must establish that he was prejudiced by counsel's deficient performance; he must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. A court deciding an ineffective assistance of counsel claim may consider the prongs of the test in either order: "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Id. at 697.
The Strickland framework for analyzing ineffective assistance of counsel claims is considered to be "clearly established Federal law, as determined by the Supreme Court of the United States" for the purposes of 28 U.S.C. § 2254(d) analysis. See Cullen v. Pinholster, 563 U.S. 170, 189 (2011); Williams, 529 U.S. at 404-08. The general rule of Strickland, to review a defense counsel's effectiveness with great deference, gives state courts greater leeway in reasonably applying that rule, which in turn "translates to a narrower range of decisions that are objectively unreasonable under AEDPA." Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). A "doubly" deferential judicial review is appropriate in analyzing ineffective assistance of counsel claims under § 2254. See Pinholster, 563 U.S. at 201; Richter, 562 U.S. at 105; Premo v. Moore, 131 S.Ct. 733, 740 (2011). When § 2254(d) applies, the question "is not whether counsel's actions were reasonable, but whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Richter, 562 U.S. at 105.
Petitioner has not shown that his trial counsel was ineffective.
Petitioner contends that trial counsel failed to investigate or present several pieces of evidence that would have cast doubt on the prosecution's case. Dkt. No. 1-1 at 182. His theory is that the evidence implicates Ms. Vitale's husband, Daniel Horowitz, in her murder, and that petitioner would not have been found guilty if trial counsel had presented this evidence more effectively. Dkt. No. 1-1 at 182-95. In particular, petitioner claims that crime scene evidence points to a killer who was comfortable in the home, not in a hurry, and motivated by anger, and that Mr. Horowitz fits this description better than petitioner. Dkt. No. 1-1 at 196.
Petitioner argues that a folded pair of bloody eyeglasses found at the crime scene and bloody handprints on boxes, papers, and objects in the sink demonstrate that the perpetrator attempted to "straighten up" the home after killing Ms. Vitale. Dkt. No. 1-1 at 183. Dishes, including a bloody bowl and a broken coffee mug with Mr. Horowitz's DNA on it, were found near the kitchen sink, but there were no blood stains on the faucet. Dkt. No. 1-1 at 196. There were also bloodstains on the shower wall, curtain, and hot water knob, and the shower may have been run. Dkt. No. 1-1 at 182-185. According to petitioner, this indicates that the killer proceeded directly to the shower to clean up, and perhaps to take a shower, without first trying to use the sink. Dkt. No. 1-1 at 185. The killer did so, petitioner argues, with the knowledge that the hot water spigot on the sink was broken, a fact that only someone familiar with the house would know. Id. Petitioner also argues that crime scene photographs show that someone with bloody hands was able to leave the home and reenter by using a key. Dkt. No. 1-1 at 184.
Petitioner also contends that trial counsel should have hired a crime scene expert to investigate further and to rebut the prosecution's analysis of the evidence. Dkt. No. 1-1 at 191. He bases this argument largely on the unsworn report of crime scene analyst Brent Turvey, who was engaged by petitioner's family post-conviction. See id.; Dkt. No. 2-18, Ex. F ("Turvey Report"). The Turvey Report concludes that some items in the home were not properly examined, that the available evidence was more consistent with an anger motive than a profit motive, that the perpetrator exhibited care and familiarity in the home, and that the DNA evidence implicating petitioner should have been independently analyzed. Dkt. No. 2-18 at 369-70. Petitioner also refers to the opinion of Dr. Laufer, who was retained by petitioner's habeas attorneys for the purpose of evaluating the trial testimony of the individual who conducted the autopsy of Ms. Vitale. See Dkt. No. 2-19, Ex. G ("Laufer Decl."). Dr. Laufer admits that he was not provided with x-rays taken in the course of the autopsy, nor was he given the opportunity to examine any histological (tissue) slides. Id. Laufer concludes that Ms. Vitale's injuries were atypical of a burglary gone bad and instead suggested a protracted struggle with no attempt to flee. Id. Dr. Laufer also claims in his declaration that the cuts on Ms. Vitale's back were more likely caused by a key than a knife. Id.
Petitioner further argues that trial counsel was ineffective for failing to challenge the prosecution's timeline evidence. Dkt. No. 1-1 at 187. He claims that the items placed in the sink, the bloody prints on boxes in the home, the fact that the shower had been run, and the alleged reentry with a key are all inconsistent with a perpetrator who was pressed for time. Dkt. No. 1-1 at 188-89. He also notes that Mr. and Ms. Curiel initially stated to police that petitioner had returned home at 9:26 or 9:30 a.m., while the evidence showed Ms. Vitale was alive and using her laptop computer until 10:12 a.m. Dkt. No. 1-1 at 189. He further claims that the prosecution's timeline, which has petitioner returning home at 10:45 a.m., is implausible because it provides only 33 minutes to commit the murder, straighten up items in the house, dispose of bloody clothing, and walk back home. Dkt. No. 1-1 at 190.
Finally, petitioner asserts that trial counsel was ineffective for failing to argue that, in addition to the perpetrator's alleged comfort and familiarity with the home, Mr. Horowitz's history of anger, his inconsistent statements about details of the crime scene, and his lack of apparent grief implicated him in his wife's murder. Dkt. No. 1-1 at 196-209. Petitioner cites interviews with several individuals who report angry outbursts by Mr. Horowitz, arguments with Ms. Vitale and financial difficulties involving construction of their house, speculation that Mr. Horowitz was having an affair, and suspicion that a black eye Ms. Vitale suffered was the result of domestic abuse. Dkt. No. 1-1 at 198-205. Petitioner also contends that Mr. Horowitz knew about a check owed to Joe Lynch for a delivery of water, but highlights Mr. Lynch being "adamant" that he had only left a message requesting the check the afternoon of the murder. Dkt. No. 1-1 at 209. This knowledge, along with a statement Mr. Horowitz made about the possibility of other wounds on Ms. Vitale's body, allegedly demonstrate that Mr. Horowitz was aware of details he could only have known if he were in the home the day of the murder. In addition, petitioner argues that Mr. Horowitz's behavior after his wife's murder was inconsistent with a grieving husband's: he made phone calls and spoke matter-of-factly after the murder, he speculated about the possible identity of the killer, and after screaming on the call to 911 his voice later became calm. Dkt. No. 1-1 at 206-208. Furthermore, petitioner alleges that Susan Polk, a client of Horowitz, said that Horowitz admitted to her that he framed petitioner. Dkt. No. 1-1 at 213, n.16 (citing Dkt. No. 2-20, 21, Exh. J. ("Polk Declaration")).
The Contra Costa County Superior Court addressed most of these arguments in detail and explained why they were insufficient to establish that the performance of petitioner's trial counsel was deficient. See Dkt. No. 17-2, Ex. 15 ("Habeas Order") at 16-25.
As the superior court reasonably found, petitioner's arguments rely on conclusions in the Turvey Report and Laufer Declaration that are speculative and fail to account for contradictory evidence. The presence of a bloody bowl and a broken mug in and near the sink do not necessarily imply the killer was "comfortable" in the home or that the killer knew about the broken faucet. Id. at 17. The fact that Mr. Horowitz's DNA was present on a mug in his own home is also unsurprising. If the killer had taken the time to shower, as the Turvey Report suggests, the blood stains on the shower wall and curtain would have been diluted or washed away, which they were not. Id. at 18. The folded glasses found at the crime scene do not suggest familiarity; neither Mr. Horowitz nor Ms. Vitale's sister recognized the glasses, and there is no basis for the report's speculation that the perpetrator comfortably removed or had Ms. Vitale remove the glasses on the morning of the murder. Id. at 17-18. The Turvey Report ignores evidence of injuries to petitioner, including the testimony of multiple witnesses who saw his swollen right hand and the fresh gouge marks on his nose and cheek that were still bleeding shortly after the time of Ms. Vitale's murder. Id. at 19-20. Although the report asserts that DNA evidence against petitioner was "problematic at best," the evidence produced at trial was substantial. Id. at 20-21. The report also concludes that the killing was motivated by anger, but the superior court found that this conclusion ignores compelling evidence that petitioner entered the home intending to steal Ms. Vitale's credit card information:
Id. (quoting Dyleski, 2009 WL 1114077, at *24). The report's conclusion that the killer left and reentered the house using a key is also speculative and unfounded. The Turvey Report focuses on the presence of blood near the deadbolt lock on the house door, but it fails to mention the bloody streaks resembling finger trails on the lower portion of the door that are apparent in the crime scene photographs. See Dkt. No. 2, Ex. 19. These photographs do not demonstrate that someone entered the house with a key. Indeed, they are more consistent with the conclusion that Ms. Vitale briefly managed to open the door during the attack but was unable to escape.
With respect to Dr. Laufer's opinion, the superior court also found that his conclusions lacked foundation and were not logically connected to the facts in the case. Habeas Order at 16. There was no evidentiary support for the claim that Ms. Vitale did not attempt to flee; the evidence that most of the struggle took place in the entryway and that there were bloody marks on the exterior of the door suggest that she did try to get out. Id. at 17. Likewise, there was no basis for the opinion that the wounds on Ms. Vitale's back were caused by a key. The doctor who performed Ms. Vitale's autopsy observed three intersecting incisions on her back, each approximately four inches in length, in the shape of an "H." Dyleski, 2009 WL 1114077, at *2. Especially in light of the deep stab wound in Ms. Vitale's abdomen, trial counsel was not under an obligation to elicit expert testimony hypothesizing that the wounds were caused by a key rather than a knife.
Petitioner's contention that trial counsel should have challenged the prosecution's timeline is similarly unpersuasive. First, as petitioner concedes, trial counsel did attempt to present an alibi defense by arguing that petitioner returned home at 9:26 a.m. Dkt. No. 1-1 at 190. This argument was simply unsuccessful. Although the Curiels initially reported to police that petitioner had returned home at approximately 9:30 a.m., both changed their testimony at trial: Ms. Curiel testified that she saw petitioner enter at approximately 10:45 a.m., and Mr. Curiel admitted that he did not have a clear recollection of what time petitioner came back home. See Dkt. No. 17-2, Exh. 4 ("Reporter's Transcript") (10 RT 2866); (11 RT 3005.) Ms. Curiel's revised estimate was based on a sales receipt and the travel time from a store where the family went shopping that day. Dyleski, 2009 WL 1114077, at *6. Furthermore, the evidence does not support petitioner's claim that the 33 minutes from 10:12 to 10:45 a.m. would have been insufficient to commit the murder and return home. As discussed above, there is no reasonable basis for the conclusion that the perpetrator took extra time to exit and reenter the home using a key or to run the shower more than briefly. Furthermore, a sheriff's detective confirmed that it takes approximately 10 minutes to walk from the Vitale-Horowitz residence to the property at 1050 Hunsaker Canyon Road where petitioner lived and where his duffle bag was found in an abandoned van.
As the superior court explained, there are several problems with petitioner's argument that trial counsel should have done more to implicate Mr. Horowitz in his wife's murder. The interviews petitioner cites to support his claims that Mr. Horowitz was angry and abusive are not compelling. When detectives asked Ms. Vitale's sister, Tamara Hill, if Mr. Horowitz was ever abusive, her reply was equivocal: she was unsure if Mr. Horowitz had ever hit his wife or if he had merely pushed her arm aside as he walked by. Habeas Order at 22. Ms. Hill also suggested that Mr. Horowitz did not act like a grieving husband after his wife's death, but there is no credible evidence to support this claim. Id. As the court noted, Ms. Hill's interview also reflects personal hostility toward Mr. Horowitz that undermines her credibility, as she repeatedly disparages him and remarks that his religion caused conflict within the family. Id.
The other interviews contain allegations that are similarly vague, unsupported, and unconvincing. The implication that Mr. Horowitz once gave Ms. Vitale a black eye, based on an interview with the couple's housekeeper, Araceli Solic, ignores Ms. Vitale's own explanation to Ms. Solic and Ms. Hill that she received it in an accident. Id. at 23-24. The unverified declaration of Mr. Horowitz's client, Susan Polk, about Horowitz's "admission" to framing petitioner, should be viewed in context—Polk indicated that she was also being framed for murder.
Moreover, even if petitioner's counsel had made the arguments outlined above, it would not have changed the outcome of the trial given the substantial evidence of petitioner's guilt. In denying petitioner's state habeas petition, the superior court quoted the Court of Appeal to emphasize the magnitude of the evidence that pointed to petitioner as the killer:
Id. at 25-28 (quoting Dyleski, 2009 WL 1114077, at *29-30).
In light of the substantial evidence presented at trial, it was reasonable for the superior court on habeas to conclude that petitioner failed to show a reasonable probability that, but for trial counsel's asserted errors, a more favorable outcome would have resulted. The California Supreme Court's summary denial on the merits adopting or substantially incorporating the reasoning from this previous state court decision was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent.
Petitioner also argues that trial counsel should have presented evidence that contamination of the crime scene undermined the integrity of the investigation. Dkt. No. 1-1 at 214-15. He identifies several concerns: crime scene photographs show that a ruler with blood on it was moved, items in the duffle bag may have been improperly handled when it was discovered, and forensic chain of custody tags were not signed for individual items within the duffle bag. Id.
Petitioner presented this argument to the California Court of Appeals as well as the California Supreme Court. Dkt. No. 17-2, Exhs. 16, 20. This Court presumes that the California Supreme Court, as the court producing the last state court decision, adjudicated the claim on the merits. Richter, 562 U.S. at 99.
The California Supreme Court's decision on the merits was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent. Petitioner's allegations of crime scene contamination are unsubstantiated and insufficient to show that prejudice resulted from any failure by trial counsel to raise the issue. The crime scene photographs show that a ruler used in the investigation may have had a small amount of blood on it, Dkt. No. 2, Ex. A, but petitioner does not explain how this could have made all evidence from the crime scene unreliable. In particular, contamination from a ruler would do nothing to undermine the compelling DNA evidence, the presence of Ms. Vitale's blood on multiple items of petitioner's clothing, and his own injuries, that all amount to substantial evidence of petitioner's guilt. Likewise, trial counsel's failure to raise the alleged errors in handling the duffle bag fails on the prejudice prong of the Strickland analysis. The investigator who found the duffle bag manipulated items inside while wearing gloves, and he signed a chain of custody tag for the bag itself. (9 RT 2320-2339.) Petitioner's argument that Ms. Vitale's blood could have ended up in the duffle bag as a result of the use of the investigator's gloves is speculation.
Petitioner argues that certain irrelevant and highly prejudicial evidence should have been excluded at trial, including violent artwork and writings by petitioner and a bumper sticker reading "I'm for the separation of church and hate." Dkt. No. 1-1 at 218-220. The writings contained themes of isolation and loneliness, and the artwork depicted knives, razor blades, blood, a swastika, references to serial killers, and a variety of symbols. Id. Petitioner claims that this evidence was irrelevant to the case and that it was prejudicial because it contained violent, hateful, and anti-Christian themes. Id.
Petitioner presented this argument to the California Court of Appeals as well as the California Supreme Court. Dkt. No. 17-2, Exhs. 16, 20. This Court presumes that the California Supreme Court, as the court producing the last state court decision, adjudicated the claim on the merits. Richter, 562 U.S. at 99.
The California Supreme Court's decision on the merits was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent. As the government observes, trial counsel did object to the introduction of this evidence at the preliminary hearing, and the objection was overruled. Dkt. No. 17-2, Exh. 1 ("Clerk's Transcript") (2 CT 673-78). Because trial counsel made reasonable efforts to have the evidence excluded, petitioner has not shown deficient performance in not making the same objection again at trial. He has also failed to show that prejudice resulted, since there is no reasonable probability that excluding this evidence would have changed the outcome at trial.
Even if petitioner's argument is construed to be a claim that the admission of the evidence violated his constitutional rights, he has not shown that he is entitled to habeas relief. An evidentiary ruling by a state court is not subject to federal habeas review unless the ruling "violates federal law, either by infringing upon a specific federal constitutional or statutory provision or by depriving the defendant of the fundamentally fair trial guaranteed by due process." Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995). No Supreme Court ruling clearly establishes that the admission of prejudicial or irrelevant evidence is a violation of due process sufficient for habeas relief under AEDPA. See Holley v. Yarborough, 568 F.3d 1091, 1101 & n.2 (9th Cir. 2009) (finding that the state court's admission of irrelevant evidence did not violate clearly established federal law under § 2254(d) even though it would have made the trial "fundamentally unfair" under Ninth Circuit precedent). Petitioner cites one pre-AEDPA case,
Here, while reasonable minds could differ on whether the artwork or the bumper sticker were more prejudicial than probative, the trial court's ruling admitting this evidence was not a clear violation of petitioner's due process rights as construed by the United States Supreme Court.
Kathryn Novaes, a fingerprint analyst, testified on direct examination that bloody prints found on boxes at the crime scene were likely made by a fabric glove. Dkt. No. 1-2 at 221. This testimony supported the theory that petitioner wore a particular costume glove, which was found in the duffle bag with other bloodstained belongings of petitioner's, when he killed Ms. Vitale. Petitioner argues that trial counsel was ineffective in failing to cross-examine Ms. Novaes on this issue and in failing to object that her testimony was beyond the scope of her expertise. Dkt. No. 1-2 at 221.
Petitioner presented this argument to the California Court of Appeals as well as the California Supreme Court. Dkt. No. 17-2, Exhs. 16, 20. This Court presumes that the California Supreme Court, as the court producing the last state court decision, adjudicated the claim on the merits. Richter, 562 U.S. at 99.
The California Supreme Court's decision on the merits was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent. Trial counsel did cross-examine Ms. Novaes and successfully elicited the fact that other fingerprints, matching neither petitioner's prints nor the fabric glove, were found on the boxes. (12 RT 3323-24.) The presence of a third party's fingerprints would be consistent with the theory that someone other than petitioner committed the murder. Challenging Ms. Novaes's expertise concerning fabric patterns consistent with a glove print would not have created sufficient doubt to change the outcome of the trial and thus fails on the prejudice prong of the Strickland analysis.
Petitioner also contends that trial counsel should have pursued a motion under California Penal Code § 995 to challenge the information that charged him with a special circumstance of burglary. Dkt. No 1-1 at 222. Section 995 provides that an "information shall be set aside by the court . . . [if] the defendant ha[s] been committed without reasonable or probable cause." Cal. Penal Code § 995(a). Petitioner asserts that there was insufficient evidence at the preliminary hearing to establish probable cause for a burglary charge and that trial counsel was ineffective for failing to challenge this lack of evidence.
An information may be set aside only if there is no rational ground for assuming the possibility that the accused individual has committed the crime. Rideout v. Superior Court, 432 P.2d 197, 199 (Cal. 1967). "Every legitimate inference that may be drawn from the evidence must be drawn in favor of the information." Id. A § 995 motion should therefore be granted "only when there is a total absence of evidence to support a necessary element of the offense charged." People v. Superior Court (Jurado), 6 Cal.Rptr.2d 242, 245 (Cal. Ct. App. 1992).
As the superior court on habeas recognized, there was sufficient evidence at the preliminary hearing to support the inference that petitioner entered Ms. Vitale's home with the intent to steal her credit card information. See Habeas Order 18-19. The evidence included petitioner's plan to fraudulently purchase marijuana growing equipment, the scraps of paper containing neighbors' credit card information, and the piece of paper with the words "Knockout/Kidnap," "question," "Keep captive to confirm PINS," "dirty work," "dispose of evidense [sic]," and "cut up, bury." Dyleski, 2009 WL 1114077, at *12. Because there was ample evidence to support a burglary charge, petitioner has not shown that trial counsel was ineffective in choosing not to pursue a § 995 motion.
Petitioner argues that appellate counsel, Phillip M. Brooks, was ineffective for his (1) failure to raise trial counsel's ineffectiveness for failing to exhaust all peremptory challenges; (2) failure to raise other ineffective assistance of trial counsel claims; and (3) failure to properly advise petitioner on possible post-conviction remedies. Dkt. No. 1-2 at 236-37.
Petitioner's claim that appellate counsel was ineffective for failing to raise trial counsel's failure to exhaust all peremptory challenges is an indirect attempt to re-litigate whether it was error for the trial court to deny his change of venue motion. Compare Dkt. No. 17-2, Exh. 6 (appellant's opening brief to California Court of Appeal) with Dkt. No. 17-2, Exh. 16 (petition for writ of habeas corpus to California Court of Appeal), Dkt. No. 1-1 (current petition). The California Court of Appeals considered this argument on the merits and concluded that the superior court did not err when it denied petitioner's motion for a change of venue.
Petitioner presented his current allegations of ineffective assistance of appellate counsel to the California Supreme Court. Dkt. No. 17-2, Exhs. 20. The Court summarily denied the petition. Dkt. No. 7. The parties agree that petitioner has exhausted this claim. Dkt. No. 17 at 2; Dkt. No. 7.
To determine whether appellate counsel's failure to raise a claim of ineffective assistance of trial counsel was objectively unreasonable and prejudicial, the district court must first assess the merits of the underlying claim that trial counsel provided constitutionally deficient performance. Moormann v. Ryan, 628 F.3d 1102, 1106-07 (9th Cir. 2010). If trial counsel's performance was not objectively unreasonable or did not prejudice the petitioner, then appellate counsel did not act unreasonably in failing to raise a meritless claim of ineffective assistance of counsel, and the petitioner was not prejudiced by appellate counsel's omission. Id.
Claims of ineffective assistance of appellate counsel are reviewed according to the standard set out in Strickland v. Washington, 466 U.S. 668 (1984). Smith v. Robbins, 528 U.S. 259, 285 (2000); Moormann, 628 F.3d at 1106 (9th Cir. 2010). First, petitioner must show that counsel's performance was objectively unreasonable, which in the appellate context requires the petitioner to demonstrate that counsel acted unreasonably in failing to discover and brief a merit-worthy issue. Smith, 528 U.S. at 285; Moormann, 628 F.3d at 1106. Second, the petitioner must show prejudice, which in this context means that the petitioner must demonstrate a reasonable probability that, but for appellate counsel's failure to raise the issue, the petitioner would have prevailed in his appeal. Smith, 528 U.S. at 285-86; Moormann, 628 F.3d at 1106. 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).
"Establishing Strickland prejudice in the context of juror selection requires a showing that, as a result of trial counsel's failure to exercise peremptory challenges, the jury panel contained at least one juror who was biased." Davis v. Woodford, 384 F.3d 628, 643 (9th Cir. 2004) (citing United States v. Quintero-Barraza, 78 F.3d 1344, 1349 (9th. Cir. 1995), cert dismissed, 545 U.S. 1165 (2005)). The relevant test for determining whether a juror is biased is whether the juror had such fixed opinions that he or she could not impartially judge the defendant's guilt. Davis, 384 F.3d at 643 (quoting Quintero-Barraba, 78 F.3d at 1349 (quoting Patton v. Yount, 467 U.S. 1025, 1035 (1984)).
During voir dire all but two of the twelve jurors and four alternates chosen to serve on the jury said they had been exposed to some publicity about the case. People v. Dyleski, No. A115725, 2009 WL 1114077, at *17 (Cal. Ct. App. April 27, 2009). Of those, twelve jurors said they had not formed any opinion about the case as a result of the publicity, one said "Yes" he had formed an opinion, and one juror wrote in, "I don't know." Id. The California Court of Appeal set forth the factual background for each seated juror:
Dyleski, 2009 WL 1114077, at *17-19 (alterations in original). The trial court found that, although some of the jurors were exposed to publicity and had retained vague or inaccurate information about the case, they "all indicated they could set aside such information and base their verdict solely on the evidence, and all understood their responsibility to presume the defendant innocent." Id. at *19. Similarly, the state appellate court found that there was not a reasonable likelihood that the defendant faced a jury that had prejudged the case against him. Dyleski, 2009 WL 1114077, at *23. Although several members were exposed to publicity, all of the jurors assured the court that they could sit as impartial jurors in this case. Id.
As discussed above, petitioner presented his ineffective assistance of appellate counsel argument to the California Supreme Court, which summarily denied his petition. This Court presumes that the California Supreme Court, as the court producing the last state court decision, adjudicated the claim on the merits. Richter, 562 U.S. at 99.
The California Supreme Court's decision on the merits was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent. Strickland prejudice has not been demonstrated because trial counsel's failure to exercise peremptory challenges did not result in the jury panel containing at least one juror who was biased. See Davis, 384 F.3d at 643. The trial court took the extra precaution of questioning each individual juror who had been exposed to publicity surrounding the case to determine if they would be able to remain impartial. Dyleski, 2009 WL 1114077, at *17-19. No juror indicated that he or she had formed a preconceived view of the case, and none refused to commit to remain objective and to listen to what was presented in court prior to reaching any conclusions about the case. Id. Juror No. 1 was the only juror who answered that he may have formed an opinion as a result of the publicity. Id. at *17. He was questioned further in camera by the court and by counsel. Id. Juror No. 1 stated that he believed that the evidence at trial might trigger his memory of something he had read or heard that made it sound to him like the defendant was guilty. Id. However, he could not remember what it was that he had heard to cause him to have this reaction, and whatever it was, he assured the court that "he could set it aside, presume defendant innocent, and base his decision solely on the evidence at trial." Id.
The statements made by the remaining jurors indicate that, although they had been exposed to publicity regarding the case, they had not formed any opinions about the defendant's guilt; they assured the court that they would be able to presume the defendant not guilty. Juror No. 2 stated that he "was the kind of person who liked to see and analyze the evidence . . . and had not jumped to any conclusion about the guilt or innocence of the person charged." Id. Juror No. 3 had only heard about the case while watching the news on TV while he was in New York. Juror. No. 4 had only read a newspaper headline about the case. Id. Juror No. 5 had read about the murder in local newspapers but stated that "he t[ook] all news coverage `with a grain of salt.'" Id. Juror No. 6 had heard and read about the case from television news coverage and the internet but had forgotten most of the specifics after the coverage ended; he also stated that he understood that he had to set aside his prior feelings, base his decision on the evidence presented, and presume the defendant not guilty. Dyleski, 2009 WL 1114077, at *18. Juror No. 7 had heard about the case and remembered that a "[h]igh school kid . . . murdered a wife or friend of some big-time lawyer," but "affirmed that his job as a juror would be to presume that the defendant was innocent." Id. (alterations in original) (internal quotations omitted). Juror No. 8 had read and heard about the case in newspapers and on television news, but did not recognize any of the names of the persons involved other than the victim's husband. Id. Juror No. 9 recalled bits and pieces of the case from radio and television; she explained that the story made her sad because the defendant was so young and stated that, "[D]eep in me I want to believe that he's innocent." Id. (alterations in original) (internal quotations omitted). Juror No. 10 had not seen, heard, or read about the case. Id. Juror No. 11 remembered some media reports but was not certain about the facts; she said that she could block everything out and listen to what was presented in court. Id. Juror No. 12 said that he had seen some newspaper and TV coverage intermittently but had not seen anything for months. Id. at *19. Although most of the jury had been exposed to publicity about the case, "pervasive publicity, without more, does not automatically result in an unfair trial." U.S. v. Guerrero, 693 F.3d 990, 1002 (9th Cir. 2012) (internal quotation marks omitted) (quoting Seattle Times Co. v. U.S. Dist. Court, 845 F.2d 1513, 1517 (9th Cir. 1988)); cf. People v. Proctor, 4 Cal.4th 499, 527 (Cal. 1992) (collecting cases where jury exposure to publicity failed to demonstrate prejudice).
As the California Supreme Court recognized, because petitioner has not shown that any of the jurors were actually biased, he cannot demonstrate that trial counsel's failure to exercise defendant's remaining peremptory challenges was prejudicial to petitioner. See Aguirre v. McEwen, No. CV 10-7126, 2012 WL 3357215, at *20 (C.D. Cal. May 14, 2012) (rejecting claim of ineffective assistance of counsel for failure to strike jurors because the petitioner had failed to show that the jury ultimately selected included a biased juror); Ayala v. Ayers, No. 01cv741, 2008 WL 313817, *7-8 (S.D. Cal. Feb. 1, 2008) (same). Appellate counsel's decision to forego raising a meritless claim was neither prejudicial nor deficient performance. The California Supreme Court's resolution of this issue was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent because petitioner failed to meet both prongs of the Strickland standard for ineffective assistance of counsel.
In the present petition, in addition to challenging the representation of appellate and trial counsel with respect to the issue regarding venue, petitioner also argues the California Court of Appeal's decision was erroneous and he assails the appellate court's analysis of the issue. Dkt. 1-2 at 242-55. Petitioner asserts that the five factors in considering a change of venue motion enumerated in Williams v. Superior Court, 34 Cal.3d 584 (Cal. 1983) should be interpreted such that they weigh in favor of a change of venue. Id. at 244-252. Confusingly, petitioner places this argument within his ineffective assistance of appellate counsel argument, concluding that appellate counsel's failure to raise this meritorious issue "prevented . . . [p]etitioner from receiving appellate review of the erroneous denial of his meritorious motion for a change of venue." Id. at 238.
Petitioner's argument challenges the merits of the California Court of Appeal's decision on the matter. See id. 242-55. The AEDPA "unambiguously provides that a federal court may issue a writ of habeas corpus to a state prisoner `only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.'" Wilson v. Corcoran, 562 U.S. 1, __, 131 S.Ct. 13, 15 (2010) (per curiam) (quoting 28 U.S.C. § 2254(a)). "[F]ederal habeas corpus relief does not lie for errors of state law." Estelle v. McGuire, 502 U.S. 62, 67 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)).
Petitioner is not entitled to habeas relief on this claim because this matter is outside the scope of federal habeas review.
Petitioner asserts that appellate counsel was ineffective because he failed to raise the ineffective assistance of trial counsel claims discussed in Section I(A). Dkt. 1-2 at 236-37. As discussed above, each of the ineffective assistance of trial counsel claims fails on one or both of the Strickland prongs. Therefore, petitioner would not be able to show that he was prejudiced by appellate counsel's failure to present these ineffectiveness claims.
It is important to note that 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); Gerlaugh v. Stewart, 129 F.3d 1027, 1045 (9th Cir. 1997); Miller, 882 F.2d at 1434 n.10. The weeding out of weaker issues is widely recognized as one of the hallmarks of effective appellate advocacy. See id. at 1434. The decision by appellate counsel not to raise these several weaker issues did not fall below the objective standard of competent representation. The California Supreme Court's decision to deny petitioner's claim on this ground was not an unreasonable application of, or contrary to, clearly established federal law.
Lastly, petitioner asserts that appellate counsel was ineffective because he did not properly advise petitioner regarding possible post-conviction remedies. Dkt. No. 1-2 at 237. Petitioner argues that appellate counsel was aware of the Turvey Report, which gave rise to an ethical obligation to advise petitioner on possible habeas claims. Id. As previously mentioned, the Turvey Report was the report generated by crime scene analyst Brent Turvey, who concluded that some items in the home were not properly examined, that the available evidence was more consistent with an anger motive than a profit motive, that the perpetrator exhibited care and familiarity in the home, and that the DNA evidence implicating petitioner should have been independently analyzed. See supra p. 21. Petitioner alleges that "[appellate counsel] discouraged [petitioner] from contacting a habeas attorney." Dkt. No. 1-2 at 237. Petitioner contends that this failure to properly advise resulted in delays which "significantly reduced the amount of time available to [present] habeas counsel to investigate potentially meritorious grounds for post-conviction relief." Id.
As analyzed in section I(B)(1) of the Discussion section of this order, the Turvey Report is speculative at best and fails to account for contradictory evidence. The decision by appellate counsel to forego weaker claims based on a speculative report would not fall below the objective standard of competent representation. Assuming arguendo that the Turvey Report was sufficiently sound and it gave rise to appellate counsel's ethical obligation to advise and this ethical obligation is cognizable as a matter of federal habeas review, the California Supreme Court's decision on the merits on this issue was not contrary to, or an unreasonable application of, clearly established federal law, because the letters petitioner advances do not demonstrate that appellate counsel "discouraged" petitioner from contacting a habeas attorney. See Dkt. 2, Exhs. V, V1, V2.
In a letter dated May 26, 2010, appellate counsel informed petitioner that the "next step in [petitioner's] appeal will be to file a petition for habeas corpus in the United States District Court in San Francisco." Dkt. 2, Exh. V. In a follow-up letter dated June 27, 2010, appellate counsel explained that his appointment to represent petitioner in California had officially ended, advised petitioner that the statute of limitations was now running for a federal habeas corpus petition, and informed petitioner that May 23, 2011 was the filing deadline. Dkt. 2, Exh. V1 at 1. In response to petitioner's query, appellate counsel indicated that finding an attorney who specializes in habeas corpus "would be very helpful, but it is also potentially very expensive." Id. at 2. Appellate counsel suggested that it would be "worthwhile to ask the federal court to appoint counsel for you before attempting to retain someone privately" and offered to "put together a motion to the federal court for the appointment of counsel." Id.
None of these statements demonstrate that appellate counsel intended to "discourage" petitioner from contacting a habeas attorney. Appellate counsel indicated that retaining one would be helpful but cautioned that the expenses could be great and suggested an alternative means of retaining habeas counsel. The decision whether or not to retain an attorney specializing in habeas corpus was ultimately left to petitioner. Moreover, in a letter dated February 5, 2011, appellate counsel followed up with petitioner as petitioner's filing deadline was approaching. Dkt. 2, Exh. V2. The letter indicates that appellate counsel had not heard from petitioner since the June 2010 letter. Id. at 1. Appellate counsel provided an additional copy of the materials required to assist petitioner in filing his habeas petition and alerted him to proceed with haste as his deadline was fast approaching. Id. at 1, 3.
Petitioner additionally contends that appellate counsel's failure to advise "significantly reduced the amount of time available to habeas counsel to investigate potentially meritorious grounds for post-conviction relief." Dkt. 1-2 at 237. However, the Court notes that Esther Fielding, petitioner's mother, contacted habeas counsel on February 28, 2011 (about three weeks after appellate counsel's letter reminding petitioner of his filing deadline). There is no indication that petitioner was unaware of the May 23, 2011 filing deadline, as it was mentioned in the June 2010 and February 2011 letters. Petitioner cannot fault appellate counsel for petitioner's choice to wait until February 28, 2011 to contact habeas counsel. Moreover, Kate Hallinan, one of the two habeas attorneys for petitioner, states in her declaration that "although we remained concerned about time . . . we felt that we could proceed." Dkt. 1-2 at 270. Hallinan further states that habeas counsel had "less than a two month window to review the records and files . . . and write and perfect the present petition." Dkt. 1-2 at 270. Petitioner is not entitled to habeas relief on this claim.
Petitioner alleges that the prosecutor's misconduct violated his Fourteenth Amendment rights to a fair trial and to due process of law. Dkt. No. 1-1 at 223. Specifically, petitioner contends that the prosecutor: (1) weaved a "Gothic theme" into petitioner's case to arouse feelings of passion and prejudice among the jurors; (2) misrepresented physical evidence; (3) referred to facts not in evidence; (4) repeatedly posed improper questions; (5) improperly commented on petitioner's decision not to testify; and (6) inappropriately appealed to the sympathy of the jurors. Dkt. No. 1-1 at 223-230; Dkt. No. 1-2 at 231-236. Petitioner presented the prosecutorial misconduct claims he currently alleges to the California Supreme Court on habeas. The California Supreme Court summarily denied petitioner's claims. Dkt. 17-2, Exhs. 20, 21. The parties agree that petitioner has exhausted this claim. Dkt. No. 17 at 2; Dkt. No. 7. This Court presumes that the California Supreme Court, as the court producing the last state court decision, adjudicated the claim on the merits. Richter, 562 U.S. at 99.
Prosecutorial misconduct is cognizable in federal habeas corpus, but "[i]mproper argument does not, per se, violate a defendant's constitutional rights." Fields v. Woodford, 309 F.3d 1095, 1109 (9th Cir. 2002), opinion amended, 315 F.3d 1062 (9th Cir. 2002) (quoting Thompson v. Borg, 74 F.3d 1571, 1576 (9th Cir. 1996)). The appropriate standard of review is the narrow one of due process and not the broad exercise of supervisory power. Darden v. Wainwright, 477 U.S. 168, 181 (1986). A defendant's due process rights are violated when a prosecutor's misconduct renders a trial "fundamentally unfair." Id.; see also Smith v. Phillips, 455 U.S. 209, 219 (1982) ("the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor"). Under Darden, the first issue is whether the prosecutor's remarks were improper; if so, the next question is whether such conduct infected the trial with unfairness. Tan v. Runnels, 413 F.3d 1101, 1112 (9th Cir. 2005); see also Deck v. Jenkins, 768 F.3d 1015, 1023 (9th Cir. 2014) (recognizing that Darden is the clearly established federal law regarding a prosecutor's improper comments for AEDPA review purposes). A prosecutorial misconduct claim is decided "on the merits, examining the entire proceedings to determine whether the prosecutor's remarks so infected the trial with unfairness as to make the resulting conviction a denial of due process." Johnson v. Sublett, 63 F.3d 926, 929 (9th Cir. 1995) (internal quotations and citation omitted); see also Trillo v. Biter, 769 F.3d 995, 1001 (9th Cir. 2014) ("Our aim is not to punish society for the misdeeds of the prosecutor; rather, our goal is to ensure that the petitioner received a fair trial.").
When examining whether misconduct amounted to a violation of due process, a court must determine whether the trial court issued a curative instruction. When a curative instruction is issued, a court presumes that the jury has disregarded inadmissible evidence and that no due process violation occurred. See Greer v. Miller, 483 U.S. 756, 766 n.8 (1987); Darden, 477 U.S. at 182; Trillo, 769 F.3d at 1000 ("We presume that juries listen to and follow curative instructions from judges."). This presumption may be overcome if there is an "overwhelming probability" that the jury would be unable to disregard evidence and a strong likelihood that the effect of the misconduct would be "devastating" to the defendant. See Greer, 483 U.S. at 766 n.8; Tan, 413 F.3d at 1115-16 (finding trial fair where jury received instructions five different times to consider only the evidence presented, and not its sympathy for the victim's life story).
Petitioner has not shown that the California Supreme Court's denial of the prosecutorial misconduct claims "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Richter, 562 U.S. at 103.
Petitioner alleges that the prosecutor wove a "Gothic theme" into his case to arouse feelings of passion and prejudice among the jurors. Dkt. No. 1-1 at 224. For example, during voir dire, the prosecutor stated the following:
Petitioner further argues that there were many other instances in which "Goth" was discussed. Dkt. No 1-1 at 225-28. Petitioner cites an instance that took place during the prosecutor's opening statement where the prosecutor described petitioner's behavior after petitioner's sister died in a car accident:
Petitioner argues that the prosecutor also made inappropriate statements when eliciting testimony from Esther Fielding and during closing arguments, including remarks that referred to the `H' shaped symbol that was etched into Vitale's back, in addition to the following comment: "Hate is a part of this case and it manifests itself in the person of the defendant both philosophically and at a personal level." Dkt. No. 1-1 at 227. The statements made during opening and closing arguments, according to petitioner, were inflammatory and lacked probative value. Dkt. No. 1-1 at 227-29.
The prosecutor's remarks during his opening statement concerning petitioner's writings and artwork were relevant to determining the identity of the perpetrator, given that the prosecution would and eventually did present evidence of the "H" symbol etched into Vitale's back. The comments concerning petitioner's black wardrobe were also relevant to proving the identity of the perpetrator, given the black glove, dark sweater pullover, and blue ski mask found in a duffle bag in petitioner's mother's abandoned Toyota van. See Dyleski, No. A115725, 2009 WL 1114077, at *11. The duffle bag, black glove, and blue ski mask were later determined to contain the victim's DNA. Id. at *12.
Additionally, the prosecutor's arguments concerning "hate" and how it "manifests itself in the person of the defendant both philosophically and at a personal level" challenged testimony from defense witnesses, such as Fielding, who characterized petitioner in a positive light. (14 RT 3854-55, 3869-71, 3875, 3895, 3899, 3902, 3906-07.) The trial court instructed the jurors that they were not to be influenced by passion or prejudice, and that the prosecutor's arguments were not to be considered as evidence. (15 RT 4171-72.)
Petitioner has not demonstrated that the state court's denial of this claim was an unreasonable application of, or contrary to, existing United States Supreme Court precedent.
Petitioner next argues that the prosecutor misrepresented information about numerous items of physical evidence, including (1) the shower, (2) the glove, (3) the knife, and (4) presumptive blood test results. Dkt. No. 1-1 at 229-230; Dkt. No. 1-2 at 230-232. Petitioner has not demonstrated that the California State Supreme Court's resolution of this issue was contrary to, or an unreasonable application of, clearly established federal law, because the prosecutor simply did not misrepresent the physical evidence.
Petitioner contends that the prosecutor misrepresented evidence because he alluded to the fact that the killer did not take a shower. Dkt. No. 1-1 at 229. Specifically, petitioner takes issue with the following statement by the prosecutor during his closing argument: "[T]he cast-off from your body, if you are taking a shower, it's going to start to drip and you are going to get drips of blood; but that shower was never run." (15 RT 4055.) Petitioner quotes the following language from Criminalist Alex Taflya's Report ("Taflya Report") to support his assertion that the prosecutor misrepresented the evidence: "The suspect appeared to have showered and a bloody handprint was observed on the shower wall." Dkt. No. 2-32, Exh. DD. In actuality, this statement was Taflya's summary of what the Detective at the scene of the crime had said to Taflya when Taflya arrived to the scene. Taflya was repeating the words of another person, and actually opined during trial that the killer did not use the shower. (8 RT 2059.) ("[T]he shower was not used."). Petitioner's argument is therefore misplaced. Based on Taflya's actual testimony, it was reasonable for the prosecutor to argue that the person who committed the murder did not use the shower.
Whether the shower was used by the killer or not was to be determined by the jury, as instructed by the court. (15 RT 4171.) ("[Y]ou must determine what facts have been proved form the evidence received in the trial and not from any other source.")
It was not unreasonable for the prosecutor to assert that the killer did not take a shower based on the evidence adduced at trial, and the state court's resolution of this issue was not "so lacking in justification that there was an error well understood and comprehended in existing federal law beyond any possibility for fairminded disagreement." Richter, 562 U.S. at 103.
Petitioner next argues that the prosecutor misrepresented facts about the black glove that was found in the duffel bag discovered by Reserve Deputy Rick Kovar. Dkt. No. 1-1 at 230. Petitioner believes that the prosecutor improperly created an impression that the glove, which contained Vitale's DNA, belonged to petitioner, that the glove was used in the murder, and that there was a missing glove that had yet to be found. Id. But petitioner does not cite any statements from the record to support his assertion. In actuality, the prosecutor's statements concerning the glove were well-founded based on the testimony elicited at trial.
Kovar testified that he found a glove inside the duffle bag that he discovered while searching Fielding's abandoned van. (9 RT 2332.) Fielding testified that on the Monday after the murder she saw the duffle bag inside of the van, she believed the duffle bag belonged to petitioner, petitioner had mentioned something about old clothes, and petitioner used words to the effect that he had left the duffle bag inside the van. (11 RT 3101, 3111-3112, 3118.) Petitioner's name was found on an airline tag from December 2003 that was attached to the handle of the duffle bag. (12 RT 3399; 13 RT 3481.) Additionally, Criminalist David Stockwell testified that DNA samples collected from the glove matched Pamela Vitale. (13 RT 3640.)
In short, the testimony provided a reasonable basis for the prosecutor to argue that the glove found in the duffle bag had been used in the murder. It is not clear from the record that the prosecutor left the impression that another glove was used in the murder and had not been found. Even if the prosecutor did leave such an impression, it would be supported by Fielding's testimony, where she stated that she had purchased gloves similar to the one found in the duffle bag. (12 RT 3188-3189.) Lastly, petitioner's claim that even defense counsel was confused by the prosecutor's alleged reference to a missing glove is without merit. Defense counsel repeatedly alluded to a single glove during her closing argument. (See, e.g., 15 RT 4123.) The prosecutor's comment did not so infect the trial with unfairness as to make the resulting conviction a denial of due process, and the state court's resolution of this issue was not "so lacking in justification that there was an error well understood and comprehended in existing federal law beyond any possibility for fairminded disagreement." Richter, 562 U.S. at 103.
Petitioner next contends that the prosecutor made improper statements concerning a knife turned over by petitioner's mother to the authorities. Dkt. No. 1-1 at 230; Dkt. No. 1-2 at 231. Petitioner argues that during the prosecutor's closing argument he referred to the knife as if it were connected to the murder of Vitale, even though no evidence suggested that the knife was connected to the murder. Dkt. No. 1-2 at 231.
During his closing argument, the prosecutor discussed the situation in which petitioner's girlfriend, Jenna, drove petitioner's backpack and other possessions to petitioner's mother, Esther, in Bolinas. (15 RT 4081.) Petitioner's backpack contained "scraps of paper with credit card account numbers and names . . . as well as a date book or journal, a box of gloves, two pairs of pants, three shirts, a pair of [Land's End] shoes, movies, an external hard drive, a book on mass murder and cult leaders, a knife, and empty bottles of absinthe." Dyleski, 2009 WL 1114077 at *11 (emphasis added). One of the shirts found in the backpack contained possible blood evidence. Id. Moreover, "[t]he general pattern of the Land's End shoe was the same as the general pattern of the shoe print found on the plastic storage bin lid found at the murder scene." Id. The shoes were identified as petitioner's and were the same as those he wore to the Renaissance Faire with his girlfriend on the day after the murder. Id.
Based on this evidence, the prosecutor stated the following:
The prosecutor's statement about the knife was reasonable given the evidence related to the other items that were discovered in petitioner's backpack. While it can be inferred that the scraps of paper with credit card account numbers and names were connected to the credit card fraud, it could reasonably be argued that the pair of Land's End shoes, the book on mass murder and cult leaders, and the knife were not related to credit card fraud. The prosecutor did not suggest that the knife was used as the murder weapon; he merely suggested that the knife was not related to the credit card fraud, which was reasonable in light of the other items found in the backpack. While it is true that (1) three "intersecting superficial incisions" were found on Vitale's back, and that (2) Vitale suffered a deep abdominal stab wound, the prosecutor never suggested that the knife found in petitioner's backpack was the cause of these injuries.
Even if the prosecutor improperly suggested that the knife was connected to the murder, this statement did not so infect the trial with unfairness as to make the resulting conviction a denial of due process. As previously mentioned, the trial court instructed the jury to "determine what facts have been proved from the evidence received in the trial and not from any other source," and that "[s]tatements made by the attorneys during the trial are not evidence." (15 RT 4171-72.) The Supreme Court has held that such limiting instructions are presumed to be effective. See Darden, 477 U.S. at 181-183 (finding that prosecutor's improper statements did not deprive Darden of a fair trial, partly because the trial court instructed the jury that the arguments made by counsel were not evidence). Additionally, the Ninth Circuit has found that instructions to jurors explaining that statements made by attorneys are not evidence are presumed to have been followed. See Runningeagle v. Ryan, 686 F.3d 758, 781 (9th Cir. 2012) (finding state court's holding that no due process violation occurred was not unreasonable, partly because the trial court "repeatedly instructed the jury that the attorney's arguments were not evidence"); Allen v. Woodford, 395 F.3d 979, 997 (9th Cir. 2005) ("[G]iven the trial court's instruction that statements by counsel were not evidence, and given the weight of the evidence against him, the prosecutor's comments did not deprive Allen of a fair trial.")
The prosecutor's comments did not render petitioner's trial fundamentally unfair, and the state court's resolution of this issue was not "so lacking in justification that there was an error well understood and comprehended in existing federal law beyond any possibility for fairminded disagreement." Richter, 562 U.S. at 103.
Petitioner next alleges that the prosecutor engaged in misconduct by referring to "presumptive" test results as blood. Dkt. No. 1-2 at 231. Specifically, regarding items that were found in the duffle bag that was discovered in Fielding's van, petitioner argues that the prosecutor erred in his opening statement by remarking, "On the shirt Pamela's blood wasn't there, but the defendant's was. The same with the overcoat." Dkt. No. 1 at 231; (7 RT 1776.) Petitioner contends that "there was no evidence of any further analysis on the overcoat, and therefore no evidence whatsoever that it contained Petitioner's blood, rather than sweat or skin cells from normal usage." Dkt. No. 1-2 at 231. Petitioner further argues that the prosecutor played "`fast and loose' with regard to the presumptive screening for the presence of blood" during questioning of a witness, notwithstanding defense objection. Id.; (12 RT 3277-3286.)
As the California Supreme Court recognized in its summary denial, petitioner's argument misses the mark because California law considers presumptive blood tests admissible evidence. In People v. Alexander, 49 Cal.4th 846, 904-905 (2010), the California Supreme Court ruled that testimony regarding presumptive blood tests is admissible when the presumptive blood tests "had no particular emotional component, nor did it consume an unjustified amount of time." The Court in Alexander also stated that, "because the defense fully explored the limitations of the presumptive tests through cross-examination, there is no likelihood this evidence confused or misled the jury. The trial court did not err, and defendant's constitutional rights were not violated." Id. (emphasis added). Here, criminalist Eric Collins testified that a portion of the overcoat tested presumptively positive for blood, noting that areas of the coat "responded fluorescently" when examined. (13 RT 3452.) A review of the record reveals that petitioner's defense counsel objected to the admissibility of presumptive tests, generally. (12 RT 3279.) Additionally, after the trial court declined to sustain defense counsel's objection, defense counsel was able to elicit from Collins on cross-examination that presumptive tests of blood were not conclusive. (12 RT 3282.) Thus, as the trial court acknowledged, any potential issues concerning presumptive blood tests involve the weight the jury should give the tests, as opposed to their admissibility. (12 RT 3284.)
The prosecutor's comments regarding presumptive blood tests were not improper given that the statements made were based on a reasonable inference derived from admissible evidence. The prosecutor's remarks did not violate petitioner's right to due process, and the state court's resolution of this issue was not "so lacking in justification that there was an error well understood and comprehended in existing federal law beyond any possibility for fairminded disagreement." Richter, 562 U.S. at 103.
Petitioner argues that the prosecutor referred to facts not in evidence during his closing argument. Dkt. No. 1-2 at 232. Specifically, petitioner contends that the prosecutor improperly referenced a bumper sticker that contained an "anti-Christian" message, the word "hate," and an image that showed an H with an "elongated horizontal line" that was similar to the symbol etched into Ms. Vitale's back. Id.
As the California Supreme Court recognized in summarily denying petitioner's claim, even if the bumper sticker was not admitted into evidence, the misstatement did not amount to a violation of due process. The trial court instructed the jurors that they were to base their decision on the evidence and that the statements of the attorneys were not evidence. (15 RT 4172-73.) Moreover, there were other of petitioner's personal effects that contained symbols or renderings that the prosecution called to the jury's attention. (13 RT 3511, 3516, 3521-3523.) Additionally, defense counsel attacked the prosecution's theory that symbols found in petitioner's writings and artwork necessarily implicated him in the murder. (15 RT 4134.) Again, the state court's resolution of any possible prejudicial effect of the prosecutor's statements in this respect was not so lacking in justification that there was an error well understood and comprehended in existing federal law.
Petitioner contends that the prosecutor engaged in improper questioning during his questioning of criminalist Alex Taflya. Dkt. No. 1-2 at 232-233. Improper questioning of a witness by the prosecutor is not alone sufficient to warrant reversal. Rather, the relevant inquiry on habeas is that dictated by Darden, 477 U.S. at 181, i.e., whether the prosecutor's behavior so infected the trial with unfairness as to make the resulting conviction a denial of due process. See Ortiz v. Stewart, 149 F.3d 923, 934 (9th Cir. 1998). In considering whether the questioning deprived the defendant of a fair trial, the witness' testimony should be viewed as a whole to determine the impact of the improper questioning. See id. at 934-35 (prosecutor's questioning witness as to whether she was afraid of defendant did not render the proceedings fundamentally unfair in light of witness' other testimony that defendant murdered her mother, stabbed her sister, stabbed her, and then tried to burn down their house while the victims were still inside).
Although petitioner's defense counsel objected to the prosecutor's leading questions on four separate occasions, all of which were sustained by the trial court, petitioner argues that the prosecutor continued to pose inappropriate questions even after being admonished by the trial court. Dkt. No. 1-2 at 232-33; (7 RT 1978-1979.) Subsequent to being warned by the trial court to cease asking Taflya leading questions, the prosecutor engaged in the following dialogue with Taflya:
Petitioner's defense counsel did not object to the above question, nor did the trial court intervene in any manner. A lack of objection signifies tacit approval of the question, especially in light of the trial court's previous warning to counsel regarding leading questions. The state court reasonably could have determined that the prosecutor's question was not so egregious that it infected the trial with prejudice and unfairness.
Petitioner also argues that the prosecutor committed a Griffin error by improperly commenting on petitioner's decision not to testify. Dkt. No. 1-2 at 233. Where a prosecutor on his own initiative asks the jury to draw an adverse inference from a defendant's silence, or to treat the defendant's silence as substantive evidence of guilt, the defendant's privilege against compulsory self-incrimination is violated. See Griffin v. California, 380 U.S. 609, 615 (1965). While it is proper for the prosecution to address the defense's arguments, a comment is impermissible if it is manifestly intended to call attention to the defendant's failure to testify, or is of such a character that the jury would naturally and necessarily take it to be a comment on the failure to testify. See Lincoln v. Sunn, 807 F.2d 805, 809 (9th Cir. 1987) (citing United States v. Bagley, 772 F.2d 482, 494 (9th Cir. 1985), cert. denied, 475 U.S. 1023 (1986)).
However, such commentary by the prosecutor requires reversal only if "(1) the commentary is extensive; (2) an inference of guilt from silence is stressed to the jury as a basis for the conviction; and (3) where there is evidence that could have supported acquittal." Jeffries v. Blodgett, 5 F.3d 1180, 1192 (9th Cir. 1993), cert. denied, 510 U.S. 1191 (1994). Put differently, such improper commentary warrants reversal only if it appears that it may have affected the verdict. See Lincoln, 807 F.2d at 809; see also United States v. Rodriguez-Preciado, 399 F.3d 1118, 1132 (9th Cir. 2005), amended, 416 F.3d 939 (9th Cir. 2005) (holding that comment on the defense's failure to explain introduced testimony or evidence does not infringe on defendant's Fifth Amendment rights).
Petitioner points to two passages from the prosecutor's closing argument in support of this claim. Dkt. No. 1-2 at 233-235. First, in discussing the "stupid lie" that petitioner fabricated when he was confronted about DNA by Fred Curiel, the prosecutor argued:
Second, the prosecutor commented on petitioner's claim of possessing an alibi:
However, a few sentences after the prosecutor's discussion of petitioner's alibi, the prosecutor stated the following:
Analyzing these statements in context, the state court reasonably could have determined that the prosecutor was not commenting on petitioner's failure to testify, and instead was using the rhetorical question format to poke holes in petitioner's suspicious pre-arrest explanations regarding certain events related to the murder, which does not amount to misconduct. The prosecutor did not stress or emphasize petitioner's decision not to testify, nor was the alleged inappropriate commentary extensive. Jeffries, 5 F.3d at 1192. Defense counsel did not object to the prosecutor's monologue. Moreover, the Supreme Court has noted that "a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw the meaning from the plethora of less damaging interpretations." Donnelly v. DeChristoforo, 416 U.S. 637, 647 (1974). The state court's resolution of the prosecutorial misconduct claim "was not so lacking in justification that there was an error well understood and comprehended in existing federal law." Richter, 562 U.S. at 103.
Lastly, petitioner contends that the prosecutor improperly appealed to the jury's sympathy, violating what is colloquially known as the "Golden Rule." Dkt. No. 1-2 at 235. A "Golden Rule" argument is "a jury argument in which a lawyer asks the jurors to reach a verdict by imagining themselves or someone they care about in the place of the injured plaintiff or crime victim." 75A Am. Jur. 2d Trial § 547. The `"Golden Rule" argument is generally impermissible "because it encourages the jurors to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on the evidence." Id.
Petitioner expresses multiple points of contention regarding this issue. Dkt. No. 1-2 at 235-36. First, petitioner argues that during jury selection, the prosecutor inappropriately spoke of the "mental gymnastics" that a juror must go through in order put aside his or her emotions. Id.; (3 RT 661.) A review of that statement in context reveals that the prosecutor was referring to the emotional battle that a juror will go through by participating in a trial generally; the prosecutor was not inflaming jury passions in order to secure a guilty verdict.
Second, petitioner contends that during closing argument, the prosecutor improperly referred to the personal characteristics of Vitale by saying, "I hope you remember that as you are reflecting on the evidence in this case, that she is about as innocent a victim as you can have in a criminal case," and by characterizing Vitale as "a woman that virtually everybody in that neighborhood loved or certainly liked." Dkt. No. 1-2 at 235-36; (15 RT 3999); (15 RT 4010.) These references about Vitale were not appeals to the jury's sympathy; they were reasonable and proper comments on the evidence and testimony adduced at trial. For example, during direct examination, a witness described Vitale as a "very lovely person" who was "very friendly with everyone." (7 RT 1843.)
Lastly, petitioner disagrees with and partially cites another statement made by the prosecutor during his closing argument, which the Court quotes in its entirety here:
The prosecutor's suggestion to the jury to imagine "the vision presented to the senses of
Pamela Vitale," may be an impermissible invitation to the jurors to place themselves in the shoes of the victim. See also Fields, 309 F.3d at 1109 (finding prosecutor's request to "think of yourself as [the victim]" inappropriate but not amounting to a due process violation). By asking the jury to imagine Vitale's perspective, the prosecutor "inappropriately obscured the fact that his role is to vindicate the public's interest in punishing the crime, not to exact revenge on behalf of an individual victim." Fields, 309 F.3d at 1109 (quoting Drayden v. White, 232 F.3d 704, 712-13 (9th Cir. 2000)).
However, the state court reasonably could have determined that these several comments did not so infect the trial with unfairness as to deprive the petitioner of his right to due process. See Darden, 477 U.S. at 183. "The arguments of counsel are generally accorded less weight by the jury than the court's instructions and must be judged in the context of the entire argument and the instructions." Ortiz-Sandoval v. Gomez, 81 F.3d 891, 898 (9th Cir. 1996) (citing Boyde v. California, 494 U.S. 370, 384 (1990)). The prosecutor's comments were isolated and were only a small part of the closing argument. Moreover, the jury was instructed by the trial court to not be "influenced by sentiment, conjecture, sympathy, passion, or prejudice," and that "statements made by the attorneys are not evidence." (15 RT 4172.)
For the reasons set forth above, the Court finds that the California Supreme Court's rejection of petitioner's claims for prosecutorial misconduct 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).
Petitioner argues that even if no single error was sufficiently prejudicial, that the cumulative effect of the alleged errors warrants relief. Dkt. No. 1-2 at 256. Petitioner's argument lacks merit, however, because as the California Supreme Court recognized, there are no errors in this case to accumulate.
In some cases, although no single trial error is sufficiently prejudicial to warrant reversal, the cumulative effect of several errors may still prejudice a defendant so much that his conviction must be overturned. See Alcala v. Woodford, 334 F.3d 862, 893-95 (9th Cir. 2003) (reversing conviction where multiple constitutional errors hindered defendant's efforts to challenge every important element of proof offered by prosecution). "The Supreme Court has clearly established that the combined effect of multiple trial court errors violates due process where it renders the resulting criminal trial fundamentally unfair." Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007) (citing Chambers v. Mississippi, 410 U.S. 284, 298, 302-03 (1973)). Where there is no single constitutional error existing, nothing can accumulate to the level of a constitutional violation. See Hayes v. Ayers, 632 F.3d 500, 524 (9th Cir. 2011).
As the California Supreme Court summarily concluded, none of the allegations that petitioner advances amount to constitutional violations. Petitioner's allegations of ineffective assistance of trial counsel and prosecutorial misconduct do not rise to the level of a constitutional violation, "even when considered in the aggregate." See Wood v. Ryan, 693 F.3d 1104, 1117 (9th Cir. 2012).
As he did on direct appeal to the California Court of Appeal, petitioner argues that California Penal Code § 190.5(b) is unconstitutionally vague because the statute does not make clear whether the court has equal discretion to impose a sentence of 25 years to life or LWOP, or whether there is a presumption favoring LWOP. Dkt. No. 1-2 at 258. Petitioner also renews his argument that California Penal Code § 190.5(b) is unconstitutional under the Eighth Amendment's prohibition on cruel and unusual punishment and runs afoul rationale of Miller v. Alabama, 132 S.Ct. 2455 (2012) and Graham v. Florida, 560 U.S. 48 (2010) because petitioner was 16 years old when the crime was committed. Dkt. No. 1-2 at 257-266.
The California Supreme Court originally held petitioner's state habeas claim pending the outcome of People v. Gutierrez, 58 Cal.4th 1354, 1360 (2014), and dismissed the petition on March 13, 2013 without prejudice to petitioner filing an original action following that court's decision in Gutierrez—which ultimately issued on May 5, 2014. Dkt. No. 7; see Gutierrez, 58 Cal. 4th at 1354. In the interim, petitioner prematurely moved this Court on April 10, 2013 to lift the stay that was imposed pending the resolution of petitioner's habeas petition before the California Supreme Court, claiming that his state habeas claims were exhausted. Dkt. No. 7. Respondent did not oppose this request and later informed the Court that "[p]etitioner ha[d] exhausted state remedies for the claims in his petition." Dkt. No. 17. Petitioner's unopposed request to lift the stay was granted. Dkt. Nos. 7, 8.
Petitioner had in fact not exhausted his state remedies at that time and to-date has not pursued his state law remedy for potential resentencing pursuant to the United States Supreme Court's decision in Miller v. Alabama, 132 S.Ct. 2455 (2012), the California Supreme Court's decision in People v. Gutierrez, 58 Cal.4th 1354 (Cal. 2014), the United States Supreme Court's decision in Montgomery v. Louisiana, 136 S.Ct. 718 (2016), the California Court of Appeal's decision in People v. Berg, 2016 WL 2854322 (Cal. Ct. App. May 12, 2016), and the forthcoming California Supreme Court decision in In re Kirchner, 244 Cal.App.4th 1398 (Cal. App. 2016), review granted, 2016 WL 2908028 (Cal. May 18, 2016).
"An applicant shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(b)(3). The United States Supreme Court has cautioned that the exhaustion doctrine is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings. See Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 490-491 (1973). While it is true that the federal and state courts are equally bound to guard and protect rights secured by the Constitution, "it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without [providing] an opportunity to the state courts to correct a constitutional violation." Rose v. Lundy, 455 U.S. 509, 518 (1982) (citations omitted); see also Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (noting that the exhaustion requirement "serves to minimize friction between our federal and state systems of justice by allowing the State an initial opportunity to pass upon and correct alleged violations of prisoners' federal rights").
The California Supreme Court in Gutierrez held that § 190.5(b) of the California Penal Code gives a sentencing court the discretion to impose either LWOP or a term of 25 years to life on a 16- or 17-year-old juvenile convicted of special circumstance murder, with no presumption in favor of LWOP. Gutierrez, 58 Cal.4th at 1387. The Gutierrez court explicitly disapproved of People v. Guinn, 28 Cal.App.4th 1130 (Cal. App. 1994)—the case the Court of Appeal relied on in petitioner's own appeal—in which the California Court of Appeal interpreted § 190.5(b) to mean "that 16 or 17-year-olds who commit special circumstance murder must be sentenced to LWOP, unless the court, in its discretion, finds good reason to choose the less severe sentence of 25 years to life." Guinn, 28 Cal. App. 4th at 1141. The Gutierrez court concluded that this presumption of LWOP as stated in Guinn would raise serious constitutional concerns in light of Miller v. Alabama, 132 S.Ct. 2455, 2469, (2012), in which the Supreme Court held that the Eighth Amendment forbids a sentencing statute that requires a sentence of LWOP for juvenile offenders. See also Montgomery v. Louisiana, ___ U.S. ___, 2016 WL 280758 (U.S. Jan. 25, 2016) (holding that Miller v. Alabama announced a new substantive constitutional rule that was retroactive in state habeas review).
The California Court of Appeal recently decided in In re Kirchner that, in light of the holding in Montgomery, inmates such as petitioner, who are serving LWOP sentences for crimes they committed while they were juveniles, are entitled to the benefits of Miller, even though their judgments of conviction are final. See I
n re Kirchner, 244 Cal. App. 4th at 1412. The court in Kirchner underscored that, "where a prisoner is serving an LWOP sentence for a crime committed while he or she was a juvenile, and at the time of his or her sentence the trial judge failed to employ the procedures required by Miller, his or her sentence is presumptively unlawful and he or she is entitled to relief from it." Id. at 1418. A petition for review to the California Supreme Court was granted in Kirchner on May 18, 2016. A week prior, in People v. Berg, 2016 WL 2854322 (Cal. Ct. App. May 12, 2016), the California Court of Appeal ordered the resentencing of a juvenile who was convicted of murder as a teenager and sentenced to LWOP because the record did not reflect that the sentencing court considered, as is required by Miller and Gutierrez, whether the crime "reflect[ed] transient immaturity or irreparable corruption[.]" Berg, 2016 WL 2854322, at *7 (citations and alterations omitted). The Court of Appeal in Berg reasoned:
Id. (citations and internal quotation marks omitted). The Court further noted that "given that Berg was sentenced prior to the decisions in Miller and Gutierrez, the record does not reflect that the sentencing court considered all relevant evidence related to whether the court could lawfully impose an LWOP sentence on Berg." Id. (citation omitted).
In short, because petitioner was told by the California Supreme Court that he could file an original habeas petition following that Court's decision in Gutierrez, and because petitioner has yet to file that petition and potential state remedies appear available to him, this Court will sua sponte stay its resolution of this issue pending petitioner's exhaustion of this claim in the appropriate state court. See Dkt. No. 7.
After he exhausts state court remedies for his Eighth Amendment challenge to his sentence, petitioner should move to lift the stay so that this court may adjudicate the Eighth Amendment claim. When he moves to lift the stay, petitioner must file a copy of his petition to the California Supreme Court in which he raises the Eighth Amendment claim, as well as a copy of the California Supreme Court's decision on the claim. Once the stay is lifted, this Court will set a briefing schedule for any supplemental argument about the Eighth Amendment claim. Petitioner is encouraged to act diligently to get back to state court, and then to return to federal court after exhausting his state court remedies. (If petitioner obtains satisfactory relief regarding his sentence from a lower state court, or wishes to abandon the Eighth Amendment claim, he must promptly file a motion to lift the stay so that this Court can enter judgment on his petition.)
For the foregoing reasons, the petition for writ of habeas corpus is DENIED as to all claims except for petitioner's Eighth Amendment claim regarding his sentence.
This action is now STAYED so that petitioner may file an appropriate petition or action in state court to challenge his sentence. The clerk shall ADMINISTRATIVELY CLOSE the case. After petitioner exhausts state court remedies as to his Eighth Amendment claim regarding his sentence, he may then return to this court and move for an order to lift the stay and reopen this action so that his Eighth Amendment claim may be adjudicated.
