JAMES K. SINGLETON, Jr., Senior District Judge.
Paula R. Moyer, a state prisoner represented by counsel, filed a Petition for Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Moyer is in the custody of the California Department of Corrections and Rehabilitation and incarcerated at the Central California Women's Facility. Respondent has answered, and Moyer has replied.
On September 11, 2007, Moyer and her co-defendants, James Ray and Christopher Morgan, were charged with murder in connection with the May 5, 2006, robbery and subsequent death of a 78-year-old man. The information also alleged robbery and burglary special circumstances.
On direct appeal of her conviction, the California Court of Appeal recounted the following facts underlying the case against Moyer:
People v. Ray, Nos. A127613, A127690, 2011 WL 3930322, *1-5 (Cal. Ct. App. Sept. 8, 2011).
On November 10, 2009 a jury found Moyer, Ray, and Morgan guilty of murder. The jury found true as to all three defendants the burglary special circumstance allegation and also found true as to Ray and Morgan the robbery special circumstance. On February 3, 2010, the trial court sentenced each of the defendants to a term of life imprisonment without possibility of parole.
Through counsel, Moyer appealed her conviction, arguing that: 1) the trial court erred in instructing on proximate cause because it failed to instruct on supervening cause; 2) the evidence was insufficient to prove that the injuries Jweinat suffered during the burglary were the cause of his death; 3) the trial court erred by failing to answer the jury's question about the term "acted with reckless indifference to human life" and denied Moyer the right to counsel when it answered the jury's question off the record and without the presence of counsel; 4) the prosecutor committed misconduct by misstating the burden of proof; and 5) the existence of cumulative error warranted the reversal of her conviction. On September 8, 2011, the California Court of Appeal affirmed Moyer's conviction in a reasoned, unpublished opinion. Ray, 2011 WL 3930322, at *17. Again proceeding through counsel, Moyer sought review in the California Supreme Court, raising the same claims she had unsuccessfully presented to the Court of Appeal. The supreme court summarily denied the petition on December 24, 2011.
Moyer timely filed a Petition for a Writ of Habeas Corpus to this Court on April 17, 2012.
In her counseled Petition before this Court, Moyer raises the same claims she raised to the state courts on direct appeal, namely that: 1) the trial court erred by failing to instruct on supervening cause and counsel was ineffective for failing to request the instruction; 2) there was insufficient evidence that the victim died of injuries suffered during the burglary; 3) the trial court erred by failing to instruct correctly on the mental state required for the special allegation and denied Moyer the right to counsel when it answered the jury's question out of counsel's presence; 4) the prosecutor committed misconduct in explaining the meaning of reasonable doubt; and 5) the existence of cumulative error warrants reversal of her conviction.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," § 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that contradicts controlling Supreme Court authority or "if the state court confronts a set of facts that are materially indistinguishable from a decision" of the Supreme Court, but nevertheless arrives at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000 ).
The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision." Id.at 412. The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts. Early v. Packer, 537 U.S. 3, 10 (2002). Where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court `unreasonabl[y] appli[ed] clearly established Federal law.'" Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted).
To the extent that the Petition raises issues of the proper application of state law, they are beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was correctly applied). It is a fundamental precept of dual federalism that the states possess primary authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (a federal habeas court cannot reexamine a state court's interpretation and application of state law); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002).
In applying these standards on habeas review, this Court reviews the "last reasoned decision" by the state court. See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004) (citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). 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). Under the AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
Moyer first argues that the trial court violated her right to due process by failing to instruct the jury on supervening cause when it instructed on proximate cause and that her trial counsel was ineffective for failing to request a supervening cause instruction. She similarly argues in claim 2 that there was insufficient evidence that the injuries Jweinat suffered during the burglary proximately caused his death. Because the resolution of claim 1 requires consideration of whether the evidence was sufficient to establish that Jweinat's death was caused by the injuries he suffered during the burglary, the causation question raised in claim 2 is addressed first.
Moyer argues that her "Fifth and Fourteenth Amendment due process rights were violated when she was convicted without sufficient evidence of a necessary element of the crime, namely, that her acts or those of her codefendants proximately caused Mr. Jweinat's death." The California Court of Appeal rejected that argument on direct appeal, concluding:
Ray, 2011 WL 3930322, at *6.
As articulated by the Supreme Court in Jackson, the federal constitutional standard for sufficiency of the evidence is whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in the original); see McDaniel v. Brown, 558 U.S. 120, 132-33 (2010) (reaffirming this standard). This Court must therefore determine whether the California court unreasonably applied Jackson. In making this determination, this Court may not usurp the role of the finder of fact by considering how it would have resolved any conflicts in the evidence, made the inferences, or considered the evidence at trial. Jackson, 443 U.S. at 318-19. Rather, when "faced with a record of historical facts that supports conflicting inferences," this Court "must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and defer to that resolution." Id. at 326.
It is a fundamental precept of dual federalism that the States possess primary authority for defining and enforcing the criminal law. See Engle v. Isaac, 456 U.S. 107, 128 (1982). Consequently, although the sufficiency of the evidence review by this Court is grounded in the Fourteenth Amendment, it must take its inquiry by reference to the elements of the crime as set forth in state law. Jackson, 443 U.S. at 324 n.16. A fundamental principle of our federal system is "that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus." Bradshaw v. Richey, 546 U.S. 74, 76 (2005); see West v. AT&T, 311 U.S. 223, 236 (1940) ("[T]he highest court of the state is the final arbiter of what is state law. When it has spoken, its pronouncement is to be accepted by federal courts as defining state law . . . ."). "Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension." Sanchez-Llamas v. Oregon, 548 U.S. 331, 345 (2006) (quoting Smith v. Philips, 455 U.S. 209, 221 (1982)) (internal quotation marks omitted). It is through this lens that this Court must view an insufficiency of the evidence claim.
Under California law, "[t]o constitute murder, there must be, in addition to the death of a human being, an unlawful act which was the proximate cause of that death. [¶] The proximate cause of a death is a cause which in natural and continuous sequence, produces the death and without which the death would not have occurred." People v. Catlin, 26 P.3d 357, 405 (Cal. 2001) (quoting CALJIC Nos. 8.55 and 8.58), overruled on other grounds. "[A]s long as the jury finds that without the criminal act the death would not have occurred when it did, it need not determine which of the concurrent causes was the principal or primary cause of death." Id. "Rather, it is required that the cause was a substantial factor contributing to the result." Id. This holds true even where the victim's preexisting physical condition was a substantial factor causing death. Id. "So long as a victim's predisposing physical condition, regardless of its cause, is not the only substantial factor bringing about his death, that condition . . . in no way destroys the [defendant's] criminal responsibility for the death." Id. (citations omitted).
Moyer contends:
Pet. Mem. at 33 (record citations omitted).
Moyer's argument is nothing more than an attack on Dr. Josselson's testimony. This Court is precluded, however, from either re-weighing the evidence or assessing the credibility of witnesses. Schlup v. Delo, 513 U.S. 298, 330 (1995); Bruce v. Terhune, 376 F.3d 950, 957-58 (9th Cir. 2004). Moyer specifically takes issue with the Court of Appeal's statement that Dr. Josselson "was quite certain that the injuries caused by the assault were the cause of [Jweinat's] death in the hospital, though he was unable to say whether the cardiac arrest was caused by a mucous plug in the tracheostomy tube, the overall stress of the assault and subsequent hospitalization, or some combination of the two." She "submits here that the Court of Appeal's statement is an unreasonable interpretation of the record, and as such it constitutes an unreasonable application of governing legal standards within the meaning of AEDPA." But Moyer cites no federal law to support her claim. Although she cursorily refers to the Fifth and Fourteenth Amendment right to due process, the gravamen of her claim is that the trial court misapplied California state law, which this Court notes arises in the context of personal injury actions and not criminal cases, requiring expert testimony of a reasonable medical probability to establish causation. Even if this Court could find error under state law, it cannot support the granting of habeas relief in federal court. See Estelle, 502 U.S. at 67-68, 71-72 (federal habeas corpus relief is not available for violations of state law or for alleged error in the interpretation or application of state law).
Under Jackson, this Court's role is simply to determine whether there is any evidence, if accepted as credible by the trier of fact, sufficient to sustain conviction. Schlup, 513 U.S. at 330. The United States Supreme Court has recently even further limited a federal court's scope of review under Jackson, holding that "[a] reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury." Cavazos v. Smith, 132 S.Ct. 2, 4 (2011) (per curiam). Jackson "makes clear that it is the responsibility of the jury—not the court—to decide what conclusions should be drawn from evidence admitted at trial." Id. at 3-4. Under Cavazos, "a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was `objectively unreasonable.'" Id. at 4 (quoting Renico v. Lett, 559 U.S. 766, 773 (2010)).
Although it might have been possible to draw a different inference from the evidence, this Court is required to resolve that conflict in favor of the prosecution. See Jackson, 443 U.S. at 326. Viewing the evidence in the light most favorable to the verdict, this Court concludes that there was sufficient evidence introduced at Moyer's trial from which a rational trier of fact could have found beyond a reasonable doubt that the injuries he sustained during the burglary "caused" the death of Jweinat, as that term is defined by California law. The record does not compel the conclusion that no rational trier of fact could have found proof that the actions of Moyer and her codefendants caused Jweinat's death, especially considering the deference owed under Jackson, Cavazos, and the AEDPA. The state court's rejection of Moyer's legal sufficiency claim is therefore not "objectively unreasonable" under Cavazos. 132 S. Ct. at 4. Accordingly, Moyer is not entitled to habeas relief on her claim that the evidence introduced at trial was insufficient to support the jury's finding that the injuries inflicted upon Jweinat during the robbery were the cause of his death.
In support of her claim that the trial court erred in failing to sua sponte instruct the jury on a supervening cause, Moyer asserts:
A challenged instruction violates the federal constitution if there is a "reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." Boyde v. California, 494 U.S. 370, 380 (1990). The question is whether the instruction, when read in the context of the jury charges as a whole, is sufficiently erroneous to violate the Fourteenth Amendment. Francis v. Franklin, 471 U.S. 307, 309 (1985). This Court must also assume in the absence of evidence to the contrary that the jury followed those instructions. Weeks v. Angelone, 528 U.S. 225, 234 (2000); Richardson v. Marsh, 481 U.S. 200, 206 (1987) (noting the "almost invariable assumption of the law that jurors follow their instructions"); see Francis, 471 U.S. at 323-24 & n.9 (discussing the subject in depth).
It is well-established that not only must the challenged instruction be erroneous but it must violate some constitutional right, and it may not be judged in artificial isolation but must be considered in the context of the instructions as a whole and the trial record. Estelle, 502 U.S. at 72. This Court must also bear in mind that the Supreme Court has admonished that the inquiry is whether there is a reasonable likelihood that the jury applied the challenged instruction in a way that violates the constitution and that the category of infractions that violate "fundamental fairness" is very narrowly drawn. Id. at 72-73. "Beyond the specific guarantees enumerated in the Bill of Rights, the Due Process clause has limited operation." Id. at 73 (citation omitted). Where the defect is the failure to give an instruction, the burden is even heavier because an omitted or incomplete instruction is less likely to be prejudicial than an instruction that misstates the law. See Henderson v. Kibbe, 431 U.S. 145, 155 (1977). In those cases, the inquiry is whether the trial court's refusal to give the requested instruction "so infected the entire trial that the resulting conviction violates due process." Id. at 156-57; Estelle, 502 U.S. at 72.
On direct appeal, the Court of Appeal concluded that the trial court was not required to sua sponte instruct the jury on the hospital's negligence as a superceding cause "because substantial evidence did not support such an instruction and it did not appear the defense was relying on that theory." Ray, 2011 WL 3930322, at *8. The appellate court reasoned:
Id. (internal citations omitted).
Moyer cites no federal law compelling the provision of a superceding cause instruction under these circumstances and indeed cites only state law in support of her claim. However, "the fact that [an] instruction was allegedly incorrect under state law is not a basis for habeas relief." Estelle, 502 U.S. at 71-72 (citing Marshall v. Lonberger, 459 U.S. 422, 438 n.6 (1983) ("[T]he Due Process Clause does not permit the federal courts to engage in a finely tuned review of the state evidentiary rules.")); Horton v. Mayle, 408 F.3d 570, 576 (9th Cir. 2005) ("If a state law issue must be decided in order to decide a federal habeas claim, the state's construction of its own law is binding on the federal court."). Claims of error in state jury instructions are generally a matter of state law that do not usually invoke a constitutional question. Gilmore v. Taylor, 508 U.S. 333, 342-43 (1993). This Court is bound by the state appellate court's determination that the trial court was not required under California law to sua sponte give a superceding cause instruction in the absence of any due process violation. Moyer fails to establish a due process violation here because she may not transform her state instructional error claim into a federal claim by simply asserting a violation of her constitutional rights. Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996) (a petitioner cannot transform a state-law issue into a federal one by simply asserting a due process violation); see also Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988) (an instructional error "does not alone raise a ground cognizable in a federal habeas corpus proceeding") (citation omitted).
As the appellate court noted, the jury was instructed on the causation principles relevant to this case:
Ray, 2011 WL 3930322, at *8 n.5.
The Court finds no basis for disagreeing with the California Court of Appeal's conclusion that the trial court did not fail to sua sponte give the jury an instruction on superceding cause. Moyer cannot establish that the omission of an instruction on superceding cause rendered her trial fundamentally unfair in light of the causation instructions as a whole and because sufficient evidence did not support an instruction on superseding cause. See Solis v. Garcia, 219 F.3d 922, 929 (9th Cir. 2000) (holding that was no constitutional error where the trial court refused to give an instruction not supported by the evidence); United States v. Yarbrough, 852 F.2d 1522, 1541 (9th Cir. 1988) (stating that an instruction can be given only if there is "some foundation" in the evidence).
The Court of Appeal likewise rejected Moyer's companion claim that counsel was ineffective for failing to request a superceding cause instruction because, "[e]ven if counsel had requested an instruction on superseding cause based on medical negligence, there is no reasonable probability the court would have given it when it was not supported by substantial evidence." Ray, 2011 WL 3930322, at *8.
To demonstrate ineffective assistance of counsel under Strickland v. Washington, a defendant must show both that his counsel's performance was deficient and that the deficient performance prejudiced his defense. 466 U.S. 668, 687 (1984). A deficient performance is one in which "counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment." Id. The Supreme Court has explained that, if there is a reasonable probability that the outcome might have been different as a result of a legal error, the defendant has established prejudice and is entitled to relief. Lafler v. Cooper, 132 S.Ct. 1376, 1385-86 (2012); Glover v. United States, 531 U.S. 198, 203-04 (2001); Williams, 529 U.S. at 393-95. Thus, Moyer must show that her trial counsel's representation was not within the range of competence demanded of attorneys in criminal cases, and that there is a reasonable probability that, but for counsel's ineffectiveness, the result would have been different. See Hill v. Lockhart, 474 U.S. 52, 57 (1985).
An ineffective assistance of counsel claim should be denied if the petitioner fails to make a sufficient showing under either of the Strickland prongs. See Strickland, 466 U.S. at 697 (courts may consider either prong of the test first and need not address both prongs if the defendant fails on one). In reviewing ineffective assistance of counsel claims in a federal habeas proceeding:
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (citations omitted); see also Runningeagle v. Ryan, 686 F.3d 758, 775 (9th Cir. 2012).
The record indicates that Moyer's trial counsel acknowledged that Moyer was not relying on any negligence theory and agreed with counsel for Ray and Morgan that there was no evidence to support such theory. The appellate court's conclusion that, "[e]ven if counsel had requested an instruction on superseding cause based on medical negligence, there is no reasonable probability the court would have given it when it was not supported by substantial evidence" is neither unreasonable nor contrary to federal law given that no expert testimony had been elicited or direct argument made on that theory. Moyer therefore cannot establish that trial counsel was ineffective for failing to request an unsupported instruction.
Nor can Moyer show that trial counsel was ineffective for failing to advance evidence in support of a negligence theory. California law mandates that, "[w]hen a person inflicts a wound on another which is dangerous, or calculated to destroy life, the fact that the negligence, mistake, or lack of skill of an attending physician or surgeon contributes to the death affords no defense to a charge of homicide." People v. McGee, 187 P.2d 706, 712-13 (Cal. 1947); see also People v. Roberts, 826 P.2d 274, 295 (Cal. 1992) ("If a person inflicts a dangerous wound on another, it is ordinarily no defense that inadequate medical treatment contributed to the victim's death."). While the California Supreme Court also held in Roberts that "when medical treatment is grossly improper, it may discharge liability for homicide if the maltreatment is the sole cause of death and hence an unforeseeable intervening cause," 826 P.2d at 295, that situation is not presented here. Thus, trial counsel's disclaimer in favor of advancing other theories was reasonable in light of California law dictating that a medical negligence theory was not appropriate under the circumstances of this case. Accordingly, Moyer is not entitled to relief on any claim relating to the causation issues.
Moyer next asserts that the trial court failed to instruct correctly on the mental state required for the special circumstance allegation and denied her right to counsel when it answered the jury's question outside counsel's presence. In addressing this claim on direct appeal, the Court of Appeal described the following facts:
Ray, 2011 WL 3930322, at *9.
As an initial matter, the state court found that Moyer's claim of instructional error and denial of right to counsel were forfeited because she agreed to the court's response to the jury without requesting an additional instruction and agreed that the trial court could refer the jury to CALCRIM No. 703 outside counsel's presence. Id. The claim is therefore procedurally defaulted from federal habeas review under the contemporaneous-objection rule. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991) (a federal court will not review a claim if the state court's rejection of the claim rests on a state law ground that is independent of the federal question and adequate to support the judgment). The Ninth Circuit has repeatedly recognized and applied the California contemporaneous objection rule in affirming denial of a federal habeas petition on grounds of procedural default where there was a complete failure to object at trial. See, e.g., Inthavong v. Lamarque, 420 F.3d 1055, 1058 (9th Cir. 2005); Paulino v. Castro, 371 F.3d 1083, 1092-93 (9th Cir. 2004).
Moreover, Moyer's claim fails on the merits. Moyer first argues that the California Supreme Court "held in [People v. Estrada, 907 P.2d 1197 (Cal. 1995),] that if a clarifying instruction is requested, the court should provide such clarification by instructing in the language of Tison v. Arizona, 481 U.S. 137 (1987)." She further contends that the trial court should have answered the jury's question with an instruction along the lines indicated by the California Supreme Court in People v. Dellinger, 783 P.2d 200, 202 (Cal. 1989). But in that case, the jury was instructed on implied malice, which requires a finding of a "conscious disregard for life", Dellinger, 783 P.2d at 202, and not a reckless indifference to human life, and thus is inapplicable here. Moyer can cite to no federal authority equating the two terms or requiring that the definition for a "conscious disregard for life"—"an intentional act involving a high degree of probability that it will result in death," id.—be given in these circumstances to conform with the United States Supreme Court's decision in Tison, which held that the Eighth Amendment does not bar the death penalty as disproportionate in a situation where the defendant, in participating in a felony that resulted in murder, acted as a major participant and with reckless indifference to human life, 481 U.S. at 157-58.
Because the instruction was not erroneous, Moyer likewise cannot prevail on her claim that she was denied her right to counsel when the trial court answered the jury's question outside of her presence. As the appellate court noted, "there being no contrary indication in the record, we presume the court responded to the jury question as agreed and simply referred the jurors to the existing instruction without providing further amplification of the law or additional instructions. The absence of counsel did not deprive [Moyer] of the assistance of counsel during a critical state of the proceedings and could not have been prejudicial under these circumstances." Ray, 2011 WL 3930322, at *10. Moyer presents no contrary evidence in this Petition either.
That the instruction was not erroneous further dooms Moyer's claim that her counsel was ineffective for failing to request an additional instruction for the "reckless indifference" instruction and in allowing the court to answer the jury's note outside of counsel's presence. As the appellate court likewise concluded, Moyer "cannot establish the prejudice necessary to prevail on such a claim because it is not reasonably probable [she] would have obtained a more favorable result had [she] requested amplification of `reckless indifference' or been present for the court's response to the jury question." Moyer therefore cannot prevail on this claim either.
Moyer additionally contends that her right to due process was violated when the prosecutor gave four analogies of the meaning of reasonable doubt "that were legally incorrect and that unfairly trivialized the prosecution's burden of proof." In considering this claim on direct appeal, the Court of Appeal laid out the following facts:
Ray, 2011 WL 3930322, at *11-12.
Moyer contends that the prosecutor's references to the following analogies were improper: 1) recognizing the image of the Statute of Liberty in a jigsaw puzzle even though some pieces are still missing; 2) determining medical treatment for a dying child; 3) getting married; and 4) making decisions where someone's "life is on the line."
To successfully raise a claim cognizable on habeas review based on a prosecutor's comments at trial, a petitioner must demonstrate that the prosecutor's comments "`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) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). Under this standard, only egregious prosecutorial misconduct can give rise to a constitutional claim. See Duckett v. Godinez, 67 F.3d 734, 743 (9th Cir. 1995). A prosecutor's comments in summation constitute grounds for reversal only when the remarks caused actual prejudice. Shaw v. Terhune, 380 F.3d 473, 478 (9th Cir. 2004) (applying harmless error test to claim of prosecutorial misconduct in summation). Moreover, a prosecutor must have "reasonable latitude" to fashion closing arguments. United States v. Molina, 934 F.2d 1440, 1445 (9th Cir. 1991).
As the Court of Appeal noted, Moyer's counsel only objected to the prosecutor's use of the puzzle analogy; the appellate court found that Moyer had forfeited her claim with respect to the remaining statements. Ray, 2011 WL 3930322, at *13-14. The forfeited claims are therefore procedurally defaulted from federal habeas review under the contemporaneous-objection rule. Coleman, 501 U.S. at 729-30; Inthavong, 420 F.3d at 1058; Paulino, 371 F.3d at 1092-93.
The Court of Appeal further concluded that the prosecutor's comparisons did not constitute misconduct. With respect to the puzzle analogy, the appellate court concluded, "Although both courts and prosecutors are well-advised to refrain from embellishing on the statutory definition of reasonable doubt, it is not reasonably likely the jurors applied the jigsaw puzzle analogy in this case to lessen the prosecution's burden of proof." Ray, 2011 WL 3930322, at *13. The appellate court similarly found no merit with respect to her statements referring to decisions involving a dying child or where someone's "life is on the line." It reasoned:
Id. at *14.
Finally, the appellate court determined that "the prosecutor's reference to marriage was somewhat cryptic, but seemed to suggest (incorrectly) that the decision to marry is one that typically involves no doubt. Again, however, the point being made was that proof beyond a reasonable doubt does not require the elimination of all possible doubt. Viewing the comment in the context of this broader point, it is not reasonably likely the jury applied the remarks in an objectionable fashion." Id.
In support of her claim that the challenged statements constituted misconduct, Moyer cites only to state law. But again, federal habeas relief is not available for alleged errors of state law. Swarthout, 131 S. Ct. at 863. Moyer points to no federal law that the appellate court's determinations contravene or unreasonably apply, and this Court is not aware of any. Indeed, the trial court instructed the jury that "[p]roof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open [to] some possible or imaginary doubt." The jury was further instructed that "[n]othing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys discuss the case, but their remarks are not evidence." Id. We must presume that the jury followed its instructions. See Weeks, 528 U.S. at 234. In light of the record and the instructions as a whole, this Court cannot say that the appellate court's resolution of this claim was unreasonable or that the prosecutor's remarks deprived Moyer of a fair trial. Moyer is therefore not entitled to relief on this claim.
Finally, Moyer argues that, "[e]ven if no single one of the errors above requires reversal of [Moyer's] convictions standing alone, reversal is required due to their cumulative prejudicial effect on [her] rights to due process of law under the Fifth and Fourteenth Amendments."
"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." Peyton v. Cullen, 658 F.3d 890, 896-97 (9th Cir. 2011) (citing Chambers v. Mississippi, 401 U.S. 284, 298, 302-03 (1973)). Such "infection" occurs where the combined effect of the errors had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (citation omitted). In other words, where the combined effect of individually harmless errors renders a criminal defense "far less persuasive than it might [otherwise] have been," the resulting conviction violates due process. See Chambers, 401 U.S. at 294.
As discussed above, Moyer does not allege any claims that amount to errors of constitutional dimension. Accordingly, she demonstrates no errors that can accumulate to a level of a constitutional violation, and the state courts therefore did not unreasonably deny her relief on this claim. See Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir. 2002).
The Clerk of the Court is to enter judgment accordingly.
