EDWARD M. CHEN, District Judge.
Travis Neal Elliott filed this pro se action seeking a writ of habeas corpus under 28 U.S.C. § 2254. The matter is now before the Court for consideration of the merits of the habeas petition. For the reasons discussed below, the petition will be denied.
The California Court of Appeal summarized the evidence of the crimes presented at trial as follows:
Cal. Ct. App. Opinion at 2-5.
At a jury trial in Contra Costa County Superior Court, Petitioner was found guilt of first-degree murder, see Cal. Penal Code § 187, with an allegation that Petitioner personally used a deadly or dangerous weapon, a sledgehammer, in the commission of the offense (id. § 12022(b)(1)). The jury also found true allegations that Petitioner had two prior serious felony convictions and two prior prison terms. On December 12, 2008, Petitioner was sentenced to a total term of 31 years to life in prison.
Petitioner appealed. On February 15, 2011, the California Court of Appeal filed an unpublished opinion affirming the judgment, see Resp. Ex. 4, and on May 18, 2011, the California Supreme Court denied Petitioner's petition for review.
Petitioner subsequently filed his federal petition for review on May 18, 2012. The Court issued an order to show cause why the petition should not be granted. Respondent filed an answer and Petitioner filed a traverse. The matter is ready for decision on the merits.
This Court has subject matter jurisdiction over this habeas action for relief under 28 U.S.C. § 2254. 28 U.S.C. § 1331. This action is in the proper venue because the petition concerns the execution of a sentence for a prisoner convicted in Contra Costa County, California, which is within this judicial district. 28 U.S.C. §§ 84, 2241(d).
Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are required first to exhaust state judicial remedies, 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). The parties do not dispute that the state judicial remedies were exhausted for the claims in the petition.
This Court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Section 2254 is the proper jurisdictional basis for a habeas petition attacking the execution of the sentence by a petitioner in custody pursuant to the judgment of a state court. See White v. Lambert, 370 F.3d 1002, 1004 (9th Cir. 2004), overruled on other grounds by Hayward v. Marshall, 603 F.3d 546, 554 (9th Cir. 2010).
The Antiterrorism And Effective Death Penalty Act of 1996 ("AEDPA") amended § 2254 to impose new restrictions on federal habeas review. A petition may not be granted with respect to any claim that was adjudicated 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).
"Under the `contrary to' clause, a federal habeas court may grant the writ 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] Court has on a set of materially indistinguishable facts." Williams (Terry) v. Taylor, 529 U.S. 362, 412-13 (2000).
"Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[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." Id. 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.
In his first claim, Petitioner maintains that the trial court committed reversible error when it allowed the prosecution to introduce evidence that victim Scales and his wife had transferred title to their house to their daughter on the day that Scales was murdered. The California Court of Appeal rejected this claim in a reasoned opinion as follows:
Cal. Ct. App. Opinion at 6-8.
The rejection of this claim by the state appellate court was neither contrary to nor an unreasonable application of clearly established United States Supreme Court authority. In addition, the state court's decision was not based on an unreasonable determination of the facts.
Petitioner's burden in demonstrating a due process violation based on an evidentiary decision is substantial. Estelle v. McGuire, 502 U.S. 62, 68 (1991); Boyde v. Brown, 404 F.3d 1159, 1172 (9th Cir. 2005). The admission of evidence is not subject to federal habeas review unless a specific constitutional guarantee is violated or the error is of such magnitude that the result is a denial of the fundamentally fair trial guaranteed by due process. See Henry v. Kernan, 197 F.3d 1021, 1031 (9th Cir. 1999); Colley v. Sumner, 784 F.2d 984, 990 (9th Cir. 1986). The Supreme Court "has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ." Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (finding that trial court's admission of irrelevant pornographic materials was "fundamentally unfair" under Ninth Circuit precedent but not contrary to, or an unreasonable application of, clearly established Federal law under section 2254(d)). The due process inquiry in federal habeas review is whether the admission of evidence was so prejudicial that it rendered the trial fundamentally unfair. Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995); Colley, 784 F.2d at 990. Only if there are no permissible inferences that the jury may draw from the evidence can its admission violate due process. See Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991).
In Petitioner's case, as the state court reasonably found, there was a permissible inference that the jury could have drawn from the testimony regarding the transfer of title. See Jammal, 926 F. 2d at 920. It would have been permissible for the jury to infer that defendant was aware of certain documents being signed and that he was concerned about the transaction. Cal. Ct. App. Opinion at 6. Furthermore, Petitioner has not shown that any alleged error was prejudicial to him. Even if a Petitioner meets the requirements of section 2254(d), habeas relief is warranted only if the constitutional error at issue had a substantial and injurious effect or influence in determining the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 638 (1993). Under this standard, petitioners "may obtain plenary review of their constitutional claims, but they are not entitled to habeas relief based on trial error unless they can establish that it resulted in `actual prejudice.'" Brecht, 507 U.S. at 637, citing United States v. Lane, 474 U.S. 438, 439 (1986). Here, Petitioner maintains that without the testimony regarding the house transfer, the jury would not have found him guilty of first-degree murder. As the state court reasonably found and as the record confirms, however, there was significant evidence establishing premeditation and deliberation. Cal. Ct. App. Opinion at 6-8. Given the strength of the evidence against him, Petitioner cannot establish that any alleged evidentiary error was prejudicial to him. Brecht, 507 U.S. at 637. Therefore, this claim must be denied.
In his second claim, Petitioner maintains that the trial court erred in denying his motion for mistrial after a prosecution witness stated on cross-examination that Petitioner had been incarcerated in the past. Petitioner also alleges that it was prosecutorial misconduct for the prosecutor to fail to adequately instruct the witness that there was a pretrial order in place preventing reference to Petitioner's prior prison term. Finally, Petitioner maintains that it was ineffective assistance for his counsel to have suggested and stipulated to the trial court's statement to the jury that Petitioner had been incarcerated from 1995-2004 for a non-violent drug offense. The California Court of Appeal rejected this claim in its entirety in a reasoned opinion as follows:
Cal. Ct. App. Opinion at 9-12.
The rejection of this claim by the state appellate court was neither contrary to nor an unreasonable application of clearly established United States Supreme Court authority. In addition, the state court's decision was not based on an unreasonable determination of the facts.
First, Petitioner cannot demonstrate that the trial court's denial of his motion for a mistrial was reversible error. As discussed supra in the analysis of Petitioner's first claim for relief, the admission of evidence is not subject to federal habeas review unless a specific constitutional guarantee is violated or the error is of such magnitude that the result is a denial of the fundamentally fair trial guaranteed by due process. See Henry, 197 F.3d at 1031; Colley, 784 F.2d at 990. Because the Supreme Court "has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ", Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009), Petitioner must demonstrate that the evidence in question was so arbitrary or so prejudicial that it rendered the trial fundamentally unfair. Walters, 45 F.3d at 1357; Colley, 784 F.2d at 990. This Petitioner cannot do.
Petitioner maintains that he was prejudiced because the statement regarding his incarceration made it more likely for the jury to conclude he was guilty of first-degree murder. As the state court reasonably found, however, there was ample evidence of premeditation and deliberation. Cal. Ct. App. Opinion at 7-8. In addition, because there was significant properly-admitted evidence regarding Petitioner's drug use, drug dealing and drug debts, there was no reasonable possibility that "the news that [Petitioner] had served time for selling drugs would have made the jury more likely to conclude he premeditated before killing Scales." Cal. Ct. App. Opinion at 10.
Furthermore, any possible prejudice from Johnson's statement was cured by the limiting instruction given by the trial judge. Juries are presumed to follow a court's limiting instructions with respect to the purposes for which evidence is admitted, Aguilar v. Alexander, 125 F.3d 815, 820 (9th Cir. 1997), and Petitioner can point to no evidence indicating that the jurors at his trial ignored the court's instruction. In addition, to the extent that Petitioner is arguing that the statement regarding his past time in prison was improper propensity evidence, the United States Supreme Court has left open the question of whether admission of propensity evidence violates due process. See Estelle, 502 U.S. at 75 n. 5. Based on the Supreme Court's reservation of this issue as an "open question," the Ninth Circuit has held that a petitioner's due process right concerning the admission of propensity evidence is not clearly established as required by AEDPA. Alberni v. McDaniel, 458 F.3d 860, 866-67 (9th Cir. 2006); accord Mejia v. Garcia, 534 F.3d 1036, 1046 (9th Cir. 2008) (reaffirming Alberni). Accordingly, such an argument in unavailing, and Petitioner is not entitled to relief on this ground.
Second, Petitioner cannot demonstrate that his counsel rendered ineffective assistance in proposing, after the trial judge denied the motion for a mistrial, that the jury be instructed that Petitioner had been incarcerated for a nonviolent drug offense. To prevail on a claim of ineffective assistance of counsel, Petitioner must show both that counsel's performance was deficient and that the deficient performance prejudiced Petitioner's defense. Strickland v. Washington, 466 U.S. 668, 686-688 (1984). To prove deficient performance, Petitioner must demonstrate that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Id. at 688. To prove counsel's performance was prejudicial, Petitioner must demonstrate a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.
A court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as the result of the alleged deficiencies. See Strickland, 466 U.S. at 697; Williams v. Calderon, 52 F.3d 1465, 1470 & n.3 (9th Cir. 1995) (approving district court's refusal to consider whether counsel's conduct was deficient after determining that petitioner could not establish prejudice). Here, as the state court reasonably found, Petitioner cannot demonstrate that he suffered any prejudice due to his counsel's alleged deficiency. Cal. Ct. App. Opinion at 11. As discussed supra, there is no evidence that, had the jury not known that Petitioner served a prison sentence for a nonviolent drug offense, it would have found Petitioner guilty of second-degree murder instead of first-degree murder. The state court found, and the record confirms, that there was ample evidence establishing Petitioner's premeditation and deliberation, as well as his drug use and drug dealing. Because Petitioner cannot demonstrate prejudice, he is not entitled to relief on this ground. See Strickland, 466 U.S. at 697; Brecht, 507 U.S. at 637-638.
Finally, Petitioner has not demonstrated that the prosecutor engaged in misconduct. The Supreme Court has held that when reviewing a habeas claim of prosecutorial misconduct, the relevant inquiry is whether the prosecutor's actions "`so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citing Donnellly v. DeChristoforo, 416 U.S. 637 (1974). "Moreover, the appropriate standard of review for such a claim on writ of habeas corpus is the narrow one of due process, and not the broad exercise of supervisory power." Id. (citations omitted).
As the state court reasonably found, there was no prosecutorial misconduct. Cal. Ct. App. Opinion at 11-12. The prosecutor did not elicit the statement regarding Petitioner's time in prison; rather, the statement was in response to a question by Petitioner's trial counsel on cross-examination. The record confirms that the prosecutor did not ask Johnson any questions that might touch on Petitioner's time in prison, and there is no evidence that the prosecutor encouraged Johnson to refer to Petitioner's incarceration. Moreover, because Petitioner cannot show that any alleged misconduct resulted in a trial so unfair that Petitioner was denied due process, he cannot demonstrate that he is entitled to relief. See Darden v. Wainwright, 477 U.S. at 81. In sum, Petitioner's entire claim relating to Johnson's statement must be denied.
In his third claim, Petitioner maintains that there were cumulative errors at his trial that require reversal. The California Court of Appeal rejected this claim, stating: "We find no cumulative error, and are satisfied that defendant suffered no prejudice." Cal. Ct. App. Opinion at 12.
The rejection of this claim by the state appellate court was neither contrary to nor an unreasonable application of clearly established United States Supreme Court authority. In addition, the state court's decision was not based on an unreasonable determination of the facts.
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, 893-895 (9th Cir. 2003) (reversing conviction where multiple constitutional errors hindered defendant's efforts to challenge every important element of proof offered by prosecution); Thomas v. Hubbard, 273 F.3d 1164, 1179-1181 (9th Cir. 2002) (reversing conviction based on cumulative prejudicial effect of numerous errors). Where there is no single constitutional error, however, nothing can accumulate to the level of a constitutional violation. See Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir. 2002); Fuller v. Roe, 182 F.3d 699, 704 (9th Cir. 1999).
Here, as detailed supra, Petitioner did not demonstrate that any constitutional errors occurred at his trial. Moreover, having found no prejudice from the errors considered separately, this Court finds no cumulative prejudice. See Thompson v. Calderon, 109 F.3d 1358, 1369 (citing Cooper v. Fitzharris, 586 F.2d 1325, 1333 (9th Cir. 1978)), rev'd. 120 F.3d 1045, opinion reinstated Calderon v. Thompson, 523 U.S. 538 (1998). Thus, Petitioner's claim of cumulative error must fail and he is not entitled to federal habeas corpus relief on this claim.
The petition for writ of habeas corpus is
Rule 11(a) of the Rules Governing Section 2254 Cases now requires a district court to rule on whether a petitioner is entitled to a certificate of appealability in the same order in which the petition is denied. Petitioner has failed to make a substantial showing that his claims amounted to a denial of his constitutional rights or demonstrate that a reasonable jurist would find the denial of his claims debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Consequently, no certificate of appealability is warranted in this case.
