JACQUELINE CHOOLJIAN, Magistrate Judge.
On February 15, 2013, Andre Butler ("petitioner"), a state prisoner who was then proceeding pro se, filed an unverified Petition for Writ of Habeas Corpus by a Person in State Custody ("Petition") pursuant to 28 U.S.C. § 2254, with an attached memorandum ("Petition Memo")
On July 19, 2013, respondent filed an Answer and a supporting memorandum ("Answer").
The parties have consented to proceed before the undersigned United States Magistrate Judge.
For the reasons stated below, the Petition is denied, and this action is dismissed with prejudice.
On June 3, 2010, the Los Angeles County District Attorney filed an Amended Information charging petitioner with two violations of California Penal Code section 451(d) — arson of the property of CalTrans (count 2) and arson of the property of Neuman Habana (count 3). (CT 262-65). On June 18, 2010, a Los Angeles County Superior Court jury found petitioner guilty of both counts (which were renumbered as counts 1 and 2 on the verdict forms to avoid jury confusion). (CT 292-93). On the same date, the trial court sentenced petitioner to a total of nine years in state prison. (CT 308-09; RT 2170-71).
On December 7, 2011, the California Court of Appeal affirmed the judgment in a reasoned decision. (Lodged Doc. 6). On March 14, 2012, the California Supreme Court denied review without comment. (Lodged Doc. 8).
Meanwhile, on May 6, 2011, petitioner petitioned the Los Angeles County Superior Court for habeas relief. (Petition Ex. A). On May 27, 2011, the Superior Court denied the petition for lack of jurisdiction in light of the then pendency of the direct appeal in the Court of Appeal. (Petition Ex. A). On June 24, 2011, petitioner petitioned for habeas relief with the California Court of Appeal. (Lodged Doc. 9). On June 28, 2011, the Court of Appeal summarily denied such petition without comment. (Lodged Doc. 10). On August 18, 2011, petitioner petitioned for habeas relief with the California Supreme Court. (Lodged Doc. 11). On January 4, 2012, the California Supreme Court summarily denied such petition without comment. (Lodged Doc. 12).
On January 11, 2009, Neuman Habana returned from county jail after serving time for violating his drug program. Habana lived in a homeless camp next to a freeway off-ramp. The homeless camp included makeshift shelters with other homeless people living in the area, including petitioner. When Habana returned to the camp, he noticed petitioner was staying at his shelter. Reluctantly, Habana gave petitioner a few days to gather his belongings and move out of the shelter.
On January 17, at around 3 p.m., Habana began to move petitioner's belongings out of the shelter. Petitioner became enraged and threatened to hit Habana. Petitioner threatened to set Habana's shelter on fire. Habana testified that he warned petitioner that he would report petitioner to the police if petitioner set Habana's shelter on fire. About 10 minutes later, petitioner returned with a container, pouring an unidentifiable liquid over a tree next to Habana's shelter.
Habana went to call the police and noticed that petitioner was following him close behind. At this time, Habana ran into Miguel Huerta, and they exchanged a few words before petitioner arrived. Habana returned to his shelter, and Miguel and petitioner discussed the situation. Miguel testified that petitioner appeared very angry and threatened to burn down the shelter. Miguel warned petitioner not to do anything foolish. Petitioner insisted he was going to burn down every off-ramp and on-ramp in the area.
Shortly thereafter, petitioner returned to the shelter and exchanged a few heated words with Habana before pulling out a lighter and setting some pine needles on fire near the shelter. Sue Huerta, who was standing next to them, attempted to put out the fire a couple of times. The third time, petitioner succeeded in setting a fire, and Sue ran to get more water, but by now, the fire was spreading too fast to put out. The fire burned an area approximately 50 by 25 feet including Habana's shelter and belongings along with several trees belonging to CalTrans.
During the trial, Michael Camello, a fire arson investigator with the Los Angeles Fire Department testified that he investigated the fire shortly after firefighters extinguished the fire. Camello determined that the origin of the fire was in the area of a tree attached to the shelter and caused by an open flame, such as that from a lighter. A lighter was subsequently recovered from petitioner's pocket after his arrest.
Petitioner testified on his own behalf and disputed the facts surrounding the fire. Petitioner asserted that he took ownership of the shelter after Habana went to jail, and after Habana returned from jail, the ownership of the shelter was never an issue. Further, petitioner claimed that moments before the start of the fire, he saw people gathered by his shelter smoking cocaine, including Sue, who was using a pan and a candle to heat heroin. Moments later, as Habana was getting up from a futon near the shelter, petitioner pulled it from under him. Petitioner suggested the futon must have hit the pan and started the fire.
This Court may entertain a petition for writ of habeas corpus on "behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim: (1) "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"; or (2) "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
In applying the foregoing standards, federal courts look to the last reasoned state court decision.
However, to the extent no such reasoned opinion exists, courts must conduct an independent review of the record to determine whether the state court clearly erred in its application of controlling federal law, and consequently, whether the state court's decision was objectively unreasonable.
Petitioner claims he is entitled to federal habeas relief because: (1) as a matter of California law petitioner could only be convicted of a single count of arson (Ground I); (2) the trial court's evidentiary rulings violated petitioner's rights under the Confrontation Clause (Ground II); (3) petitioner's trial counsel rendered ineffective assistance (Ground III); (4) the prosecution engaged in misconduct (portion of Ground IV); (5) the trial judge was biased (portion of Ground IV); and (5) cumulative error (Ground V). Petitioner is not entitled to habeas relief on any of his claims.
In Ground I, petitioner contends, as a matter of state law and statutory interpretation, that he was improperly convicted of two arson counts under California Penal Code section 451(d) based on a single alleged act of setting a fire, and that the fact that each arson count in this case pertained to property owned by a different entity/person (CalTrans/Habana) does not support two separate convictions. (Petition Memo at 12-14).
The California Court of Appeal — the last state court to issue a reasoned decision addressing this claim — rejected the claim on its merits, finding, as a matter of statutory construction and state law, that petitioner could properly be charged with and convicted of two arson counts. (Lodged Doc. 6 at 4-6). The Court of Appeal noted that, as a general matter under California law (subject to an exception not applicable here), a single act or course of conduct by a defendant can lead to convictions of any number of offenses charged, so long as the defendant is not punished for more than one crime arising out of the same act or course of conduct.
Petitioner is not entitled to federal habeas relief on his instant claim as it is predicated on state law and is not cognizable on federal habeas review.
Accordingly, Ground I does not merit federal habeas relief.
In Ground II, petitioner asserts that the trial court's rulings in response to prosecution witness Neuman Habana's refusal to answer certain questions on cross-examination violated the Confrontation Clause. (Petition Memo at 14-22). Specifically, petitioner argues that he should have been allowed to recall and cross-examine Habana regarding the alleged drug activity of others at the homeless camp, and that the trial court erred in denying his repeated motions to strike Habana's testimony or declare a mistrial. The California Court of Appeal — the last state court to issue a reasoned decision addressing this claim — rejected the claim on its merits, finding that the trial court's limits on petitioner's right to recall Habana did not violate the Constitution. (Lodged Doc. 6 at 6-10). Petitioner is not entitled to federal habeas relief on this claim.
Neuman Habana testified that on January 17, 2009, he lived in a shelter he built near an off-ramp in an area that had trees, shrubs, and bushes. (RT 917). When Habana tried to remove petitioner from Habana's shelter, petitioner threatened to set Habana's place on fire. (RT 947-48). After two tries, petitioner lit a third fire that spread to burn the shelter and the tree it was built against. (RT 959-69). The fire burned the shelter, most of Habana's blankets and clothing, his two chairs, bike parts, and canes, and a plastic trash can, leaving Habana with no belongings. (RT 969-71;
On cross-examination, Habana admitted that he had been arrested for failing to go to a drug program. (RT 973-74). Habana admitted to using narcotics (crack cocaine) prior to his arrest, and on a daily basis after he returned to the homeless encampment, and to using a lighter to light the crack that he had in his pocket on the day of the fire. (RT 974-78, 990;
(RT 978). Counsel again asked if Habana had seen other people using narcotics and Habana replied: "That I can't tell you what I saw because it doesn't affect anybody else." (RT 979). The court ordered Habana to respond, and Habana replied, "That, I can't give out." (RT 979). Out of the jury's presence, petitioner's counsel objected to Habana's refusal to answer questions as impinging on petitioner's right to a fair trial and to confrontation because admitted drug use related to eyewitness credibility and their ability to perceive. (RT 979-80). The trial court asked and the prosecution confirmed that the prosecution had other witnesses who could be asked about their drug use. (RT 979-80). After some discussion, the court advised that it would order Habana again to answer counsel's questions, and that if Habana refused and that if the defense continued to feel hampered after an opportunity to question the other witnesses whose drug use was in issue, the defense could raise the issue at such later time. If the other witnesses refused to cooperate, the court would allow the defense to bring Habana back for a hearing. (RT 982-83). The court denied petitioner's motion for a mistrial at that time, indicating that if the other witnesses refuse to answer, counsel would have a viable motion at that time. (RT 983-84).
In the presence of the jury, the trial court again ordered Habana to answer the questions asked. (RT 984). When asked whether he had seen Sue Huerta consume narcotics in January of 2009, Habana refused to answer. (RT 984-85). Habana did not know whether Miguel Huerta ever consumed narcotics in January of 2009. (RT 985). Habana said he had not consumed rock cocaine with Sue Huerta in January of 2009. (RT 985). Habana would not say whether he consumed rock cocaine by himself or with others. (RT 985-86). The trial court again ordered Habana to answer the questions posed but to no avail. (RT 986). After Habana's testimony, the trial court told counsel outside the presence of the jury that the defense would be allowed to ask the defense witnesses about their drug use and ability to perceive. (RT 1039-40, 1207). Petitioner's counsel again moved to strike Habana's testimony or alternatively for a mistrial — motions which the trial court denied. (RT 1207-08).
Sue Huerta testified that petitioner lit Habana's hut on fire. (RT 1226-30). On cross-examination Sue admitted that Habana used his "hut" (or shelter) to smoke rock cocaine. (RT 1241-42). She denied ever smoking rock cocaine at all or with Habana before. (RT 1242, 1264). She stated that she had stopped using heroin about two weeks before the fire, and was purchasing methadone on the street which she drank daily (including the day of the fire) to help her stay off heroin. (RT 1243-44, 1264). Sue Huerta said methadone did not give her a high or affect her ability to perceive. (RT 1244, 1258). She shared the methadone she took on the day of the fire with her husband Miguel Huerta, who also consumed methadone daily because he had been a heroin user. (RT 1244-45, 1253). She had seen a person under the influence of rock cocaine and the intoxicated effect. (RT 1246). She did not notice that Habana was under the influence just before the fire. She said Habana would get really quiet under the influence and at that time Habana was boisterous and jumping around. (RT 1246-47). She did not think Habana was using right before the fire. (RT 1246).
Miguel Huerta testified that on the day of the fire petitioner was upset with Habana and told him (Miguel Huerta) that he (petitioner) was going to burn Habana's dwelling. (RT 1272). Miguel Huerta went to a store and when he returned he saw a tree on fire. (RT 1273). He admitted that he was using heroin in January of 2009 on a daily basis and that he, along with Sue Huerta, had used heroin on the morning of the fire. (RT 1274-75).
The fire investigator testified that when he investigated the scene he saw that three or four trees and some items had been burned in the area, including what appeared to be a shelter. (RT 1290-95, 1502-06, 1513;
At the close of the prosecution's case, the trial court found that the Huertas were not evasive about their own drug use, and had answered the questions Habana refused to answer. (RT 1572). Petitioner's counsel wanted to bring Habana back to further impeach Sue Huerta's testimony that she and Miguel Huerta were doing methadone, not heroin. (RT 1573). The trial court took under consideration the matter of whether the defense could recall Habana for the limited purpose of asking what Habana may know about the Huertas' drug use, but indicated there already was sufficient evidence for the impeachment of the Huertas to cast doubt on their credibility. (RT 1573-75).
Petitioner's defense was that it was Sue Huerta's careless heating of heroin that caused the shelter to catch fire. (RT 1802, 1837-39, 1842-44, 1868-70, 2129-30). Petitioner denied having words with Habana that day and said he would not have been angry had Habana asked him to leave the shelter. (RT 1850, 1853-59). Petitioner suggested that Habana and the Huertas were lying so that someone else would take the blame for the fire. (RT 1875).
Petitioner's counsel sought to recall Habana to testify and the trial court denied the final request, finding that the Huertas freely admitted having used drugs, that they had already been adequately impeached, and that recalling Habana to elicit further impeachment evidence would result in an undue consumption of time. (RT 1880-81). The court also denied a renewed motion for mistrial noting that the record was "replete with information that impeaches those witnesses." (RT 1881).
The Confrontation Clause of the Sixth Amendment, made applicable to the States through the Fourteenth Amendment, provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witness against him." U.S. Const. amend. VI;
When a witness gives "testimony that is marred by forgetfulness, confusion, or evasion . . . the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness' testimony."
A Confrontation Clause claim is subject to harmless error analysis.
The Court of Appeal reasonably rejected this claim as the trial court's refusal to allow petitioner to recall Habana to the stand for further examination did not violate the Confrontation Clause. First, there is no suggestion that Habana's further testimony about Miguel and Sue Huerta's drug use would have given the jury a significantly different impression of the credibility of the Huertas or Habana.
Assuming, arguendo, that petitioner's right to confrontation was violated by the trial court's finding that recalling Habana would be repetitive and unduly time consuming, petitioner can show no prejudice from the trial court's rulings. The prosecution's case against petitioner was strong. All three witnesses testified that petitioner had threatened to light the shelter on fire, and the two witnesses who saw the fire lit reported the same story to initial responders and at trial: petitioner tried three times to light the shelter on fire, Sue Huerta put out the first two fires, and the third fire burned down the shelter and its surroundings, including the trees. The fire investigator testified that he believed the fire was intentionally set in the area where the witnesses said petitioner lit the shelter.
The trial court ordered Habana to answer the defense questions and gave the defense wide latitude in cross-examining both Habana and the Huertas so that petitioner could explore his theory of the defense. The jury heard petitioner's defense that the fire was accidentally started by Sue Huerta's careless drug use at the homeless camp, and heard Habana and Miguel Huerta admit that all three witnesses (Habana, Miguel Huerta, and Sue Huerta) were using drugs involving open flames on the day of the fire. The jury also heard Habana and Miguel Huerta testify that they did
On this record, the Court does not find that the trial court's denial of petitioner's request to recall Habana to further impeach the Huertas, and the accompanying defense motion for mistrial, materially violated petitioner's constitutional rights. The Court of Appeal's denial of this claim was not an unreasonable application of clearly established federal law.
In Ground III, petitioner asserts a number of reasons his trial counsel assertedly rendered ineffective assistance. (Petition Memo at 23-26). Petitioner contends that his trial counsel was ineffective for failing to investigate and subpoena witnesses for the defense, namely Bert Hicks and arson investigator Hernandez. Petitioner faults counsel for relying on the prosecution to produce witnesses, and for failing to obtain an expert witness to rebut the state's arson expert to support his "not arson" defense. (Petition Memo at 23, 25-26). Petitioner also faults counsel for failing to research and offer case law to the trial court after the court overruled counsel's objection to the filing of an additional arson count on the day of trial. Petitioner suggests, without any authority, that counsel should have argued that the additional count put petitioner "twice in jeopardy for the same offense." (Petition Memo at 24). Finally, petitioner faults counsel for failing to establish the value of the damaged property in question, since the threshold for felony arson assertedly was $950, and it was estimated that the value of property damaged was $1,000. (Petition Memo at 24). As the California Supreme Court rejected such claims without comment on habeas review — a determination which is deemed to be on the merits — and as there is no reasoned decision addressing the merits of such claims, this Court has conducted an independent review of the record to assess whether petitioner is entitled federal habeas relief thereon. Based upon such independent review, this Court concludes that none of these alleged shortcomings establish counsel's ineffectiveness or petitioner's entitlement to federal habeas relief.
The Sixth Amendment of the United States Constitution as applied to the states through the Fourteenth Amendment guarantees a state criminal defendant the right to effective assistance of counsel at trial.
After the preliminary hearing, petitioner requested and was granted the right to represent himself. (RT E1-E5). From May 26, 2009, though May 3, 2010, petitioner represented himself at numerous pretrial hearings while he developed his defense. (RT D1-N5). This Court has read and considered the entirety of these hearings and notes that the trial court was accommodating to petitioner's various requests.
For instance, petitioner was granted an investigator and, upon further request, was granted a different investigator who worked near the crime scene. (RT E5-F1, G4-G5, G8).
Petitioner wanted to subpoena various witnesses and was instructed to write down the names of the proposed witnesses and to tell the court why petitioner wanted the witnesses to testify. (RT H7). After a pause, petitioner asked the court to "hold off" on contacting petitioner's arson expert based on what petitioner's investigator had gathered from the crime scene. (RT H8-H9). The court gave petitioner and the prosecution time to discuss the investigator's findings. (RT H9). The court approved additional defense investigator hours and petitioner replied, "If we can eliminate the expert witness, I think [the investigator has] been expert enough to help me." (RT H10). The court granted petitioner's request. (RT H10).
At the next pretrial proceeding, petitioner indicated he had photographs to contest the testimony that the property at issue had an estimated value of $1,000. (RT I3-I4). The trial court found that the value would be an issue for the trier of fact. (RT I4).
At a later hearing, petitioner advised that he would be calling "at least 15" witnesses he had yet to disclose to the prosecution. (RT L13). Petitioner indicated that he would not be ready for trial until he could provide a witness list and advised that he would file a motion to recuse the judge. (RT L14). When the matter returned for the next court date, the judge denied the motion to recuse the judge as untimely since petitioner had been assigned for all purposes to the court for over a year. (RT M1). Petitioner then requested that the trial court appoint his standby attorney to represent him during trial because petitioner thought the stress might be too much, but petitioner wanted to complete his investigation before the appointment of standby counsel. (RT M6-M7). The trial court permitted petitioner to proceed as requested. (RT N5).
Petitioner fails to demonstrate that his trial counsel was ineffective in failing to investigate and subpoena Bert Hicks and arson investigator Hernandez, who took the photographs of the fire scene,
There is no indication in the record that petitioner's counsel relied on the prosecution to produce witnesses. Counsel expressed an intent to call a drug expert and noted that he had two other witnesses to call if he could locate them — for one he had only a first name and the other was a common name. (RT 314-15). Later, after voir dire had begun, petitioner provided counsel with a list of 18 named witnesses, some counsel noted were not applicable to the case, and none of those witnesses (who were not included in counsel's list) had been properly subpoenaed. (RT 602-03). Petitioner's counsel called his own witnesses in petitioner's defense. As noted above, petitioner was given many pretrial opportunities to produce a witness list for the court, and had his own investigator while he was representing himself who could have served subpoenas on any witnesses petitioner saw fit to subpoena for trial. Petitioner also chose to forego obtaining his own arson expert based on what the defense investigator had gathered from the scene. Once again, petitioner cannot fault counsel for the choices petitioner made in preparing his own case for trial.
In short, the record refutes petitioner's allegations that counsel was ineffective in the foregoing respects.
Petitioner faults counsel for failing to research and offer case law to the trial court, after the court overruled counsel's objection on the day of trial to the filing of an additional arson count. (Petition Memo at 23).
The original Information charged petitioner with one count of arson of a structure in violation of California Penal Code section 451(c). (CT 95-97). At the preliminary hearing, Habana testified that petitioner intentionally lit a tree on fire near Habana's shelter which burned Habana's shelter and all of his belongings inside. (CT 18-23). The prosecution thereafter filed an Amended Information adding an additional count of arson of the property of another (Habana) in violation of California Penal Code section 451(d). (CT 137-40; RT D5). When the matter was called for a hearing on the petitioner's motion to set aside the Information, petitioner's counsel objected to the Amended Information because it named a new victim (Habana) based on information that purportedly was not gathered at the preliminary hearing. (RT D4). Counsel also argued that the evidence was insufficient to support the charges because the shelter was not adequate to be a "structure," and there was a lack of case law to suggest that the shelter was a "structure" (which the court and the prosecution acknowledged). (RT D6-D12). The trial court granted the motion as to the arson of a "structure" count, finding that what was burned did not constitute a "structure," but denied the motion as to arson of the property of Habana since Habana testified that his personal property had been burned. (RT D15).
On the first day of trial, the trial court noted another Amended Information had been filed adding the arson of property of another (CalTrans) count. (RT 301-02). Counsel objected to such Amended Information as untimely, and questioned why there would be multiple counts for the same fire. (RT 302, 305-08). Counsel argued that the issue was whether the charge for arson of property of Habana survived a motion to set aside the Information based on what was burned. (RT 305). The court noted that there was sufficient evidence that a jury could find that petitioner burned the trees which belonged to CalTrans (and could not be petitioner's property), and any dispute over whether the shelter and items burned belonged to petitioner or to Habana would be a matter for the jury to decide. (RT 307). As to whether there could be two counts from the same fire, the court inquired whether counsel had any authority for his argument and counsel then had none given the timing of the amendment. (RT 308). The trial court overruled counsel's objection without prejudice to counsel presenting authority to support his position that two counts could not arise from the single fire. (RT 308-09).
As noted in the discussion regarding Ground I herein, the Court of Appeal found that the additional count for the same fire was proper under California law. (Lodged Doc. 6 at 4-6) (noting specifically that "multiple charges and multiple convictions can be based on a single criminal act, if the charges allege separate offenses") (quotations and citation omitted). Counsel cannot be faulted for failing to further pursue a baseless claim.
Petitioner faults counsel for failing to establish the amount of the damage to the property in question. (Petition Memo at 24). At petitioner's behest, counsel took issue with the value of the property that was destroyed, asking for an estimate of the loss amount, and the trial court noted that value was not an element of the charge or any lesser included offenses. (RT 312;
For all the foregoing reasons, and based on the Court's independent review of the record, Ground III does not merit federal habeas relief.
Petitioner also raises a number of prosecutorial misconduct allegations. Petitioner contends that the prosecution amended the Information adding the prior strike conviction allegation and the second arson count for destruction of CalTrans property to punish petitioner for rejecting a plea offer and exercising his right to a jury trial. (Petition Memo at 27-28, 30, 32). Petitioner also contends that the prosecution improperly vouched for the State's witnesses (Petition Memo at 28, 30-31) and knowingly presented false testimony. (Petition Memo at 31). As the California Supreme Court rejected such claims without comment on habeas review — a determination which is deemed to be on the merits — and as there is no reasoned decision addressing the merits of such claims, this Court has conducted an independent review of the record to assess whether petitioner is entitled federal habeas relief thereon. Based upon such independent review, this Court concludes that none of the foregoing allegations amount to misconduct or otherwise merit federal habeas relief.
By amending the Information to add the additional count shortly before trial, petitioner asserts the prosecution vindictively prosecuted petitioner for rejecting a plea offer. (Petition Memo at 27-28, 30, 32 (citing, inter alia,
Just before trial, the court noted that petitioner's maximum sentence exposure was 12 years, and that the court previously had offered petitioner time served, with probation and accommodations for transportation to the V.A. office for any medical needs. (RT 4;
"For an agent of the State to pursue a course of action whose objective is to penalize a person's reliance on his [or her] protected statutory or constitutional rights is `patently unconstitutional.'"
"The mere adding of the new charge at that [pretrial] stage of the proceedings did not give rise to an appearance of vindictiveness."
Based on this Court's independent review of this claim, the California Supreme Court's rejection of this claim was not contrary to, or an unreasonable application of, any clearly established federal law as determined by the United States Supreme Court.
Petitioner also contends that the prosecution improperly vouched for the "condition and state of mind" of the prosecution witnesses, all the while knowing that the witnesses were under the influence of drugs when they came to court, prejudicing petitioner since the case hinged on witness credibility. (Petition Memo at 28, 30-31). Petitioner does not indicate any place in the record where the prosecution vouched for these witnesses other than a general reference the prosecutor purportedly offering her personal opinion during closing argument. (Petition Memo at 28, 30-31).
There is no suggestion that the prosecution vouched in any way for the state of mind of the State's witnesses. The jury was presented with evidence that the Huertas had taken heroin close in time to their testimony.
"Vouching consists of placing the prestige of the government behind a witness through personal assurances of the witness's veracity, or suggesting that information not presented to the jury supports the witness's testimony."
Petitioner contends that the prosecution knowingly presented false testimony. (Petition Memo at 31) (citing
For these reasons, and based on the Court's independent review of the record, petitioner's prosecutorial misconduct claim does not merit federal habeas relief.
Petitioner contends that his trial judge was biased for (1) allowing the prosecution to present witnesses who were under the influence of drugs; (2) "swaying" Habana to answer defense questions with "I don't know," to avoid having to order Habana to answer, and otherwise for not holding Habana in contempt for his refusal to answer the defense questions about the drug use of others; and (3) failing to address petitioner's bias claims in detail when petitioner filed his motion to recuse the judge. (Petition Memo at 35-37;
"[T]he Due Process Clause clearly requires a `fair trial in a fair tribunal,' before a judge with no actual bias against the defendant or interest in the outcome of his particular case."
As explained above, petitioner has not shown any prosecutorial misconduct. Petitioner's bias claim predicated on the trial court's "blind view" to the prosecution's presentation of its case does not show bias. Nor does petitioner's claim predicated on the trial court allowing the prosecution to present witnesses who allegedly were under the influence show bias. To the extent any of the prosecution witnesses may have been using drugs, the jury was informed of such and could use the same in determining the weight to be given to the witness testimony. From the record it appears that the witnesses were able to coherently and directly answer the questions posed to them — and did so with no objection or question as to their competence.
To the extent petitioner claims that the trial court was required under California law to make a more detailed ruling on his motion to recuse the trial judge, petitioner fails to state a federal claim.
Based upon its independent review of the entire trial proceedings, this Court discerns no indication that the trial judge was biased against petitioner in any way. The trial judge patiently allowed petitioner time to develop his case as petitioner represented himself and, when petitioner chose to have counsel during trial, presided over the trial with no indication of bias. This claim is without merit and accordingly fails to establish petitioner's entitlement to federal habeas relief.
Petitioner contends that the cumulative effect of the foregoing alleged errors denied him due process. (Petition Memo at 37-40). As the California Supreme Court rejected such claim without comment on habeas review — a determination which is deemed to be on the merits — and as there is no reasoned decision addressing the merits of such claims, this Court has conducted an independent review of the record to assess whether petitioner is entitled federal habeas relief thereon. Based upon such independent review, this Court concludes that petitioner is not entitled to habeas relief on this claim.
As discussed above, this Court has considered and rejected all of the foregoing claims on the merits. "While the combined effect of multiple errors may violate due process even when no single error amounts to a constitutional violation or requires reversal, habeas relief is warranted only where the errors infect a trial with unfairness."
IT IS THEREFORE ORDERED that: (1) the Petition is denied and this action is dismissed with prejudice; and (2) the Clerk shall enter judgment accordingly.
