ALLISON CLAIRE, Magistrate Judge.
Petitioner is a California state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The action proceeds on the petition filed on August 13, 2013,
On March 7, 2008, petitioner was charged by indictment in the San Joaquin County Superior Court with the following seven counts: (1) first-degree murder on October 19, 2007 (Cal. Penal Code § 187); (2) being a felon in possession of a firearm on October 19, 2007 (Cal. Penal Code § 12021(a)); (3) attempted robbery on October 23, 2007 (Cal. Penal Code § 211/664); (4) transporting cocaine on October 23, 2007 (Cal. Health & Safety Code § 11379); (5) possession of cocaine with a loaded gun on October 23, 2007 (Cal. Health & Safety Code § 11370.1(a)); (6) being a felon in possession of a firearm on October 23, 2007 (Cal. Penal Code § 12021(a)); and (7) being an active member of a criminal street gang (Cal. Penal Code § 186.22(a)). Multiple additional enhancements for personally using a gun (Cal. Penal Code § 12022(c)), being released on bail (Cal. Penal Code § 12022.1), and serving a prior prison term (Cal. Penal Code § 667.5) were also alleged. Finally, the indictment alleged that petitioner had previously been convicted of a serious felony within the meaning of California's Three Strikes Law (Cal. Penal Code §§ 667(d), 1170.12(b)). 1 CT 1-4.
After count 3 (attempted robbery) was severed, petitioner's jury trial on the remaining seven counts commenced on January 16, 2009. 3 CT 773, 793, 801.
On October 19, 2007, Obed Pigg was fatally shot in a "smoke shop" in Stockton, California. Pigg was a friend of the shop's owner and a frequent visitor to the business. On the day of his death, Pigg drove to the shop in his green Cadillac. Soon after he entered the shop, someone in a dark, hooded sweatshirt followed him into the store and shot him, firing at least 10 shots. The assailant fled the store and disappeared into the neighborhood on foot. The hooded sweatshirt and the gun that fired the fatal shots were later found in a neighboring backyard.
The prosecution presented both motive evidence and eyewitness evidence, as follows, to establish that petitioner was the assailant.
Pigg's girlfriend, Tammy Samuels, testified that petitioner had robbed Pigg two weeks before the shooting. On October 5, 2007, Samuels and Pigg had gone to Stribley Park in Pigg's green Cadillac to watch Samuels's son play football. They stopped on the way to get $300 in cash, which Samuels gave to Pigg to pay their share of the rent. At the park, Pigg parked the Cadillac and stayed behind to talk to a friend while Samuels went across the park to the game. When Samuels looked back toward Pigg a few minutes later, she saw a third man join him and his friend. She observed what might have been horseplay or a scuffle, after which Pigg ran to his car, jumped in, and sped off. A few seconds later, Pigg called Samuels' cell phone and began "ranting and raving" so that she could not understand what he was saying. He yelled at her to get out of the park and meet him at the handball court. When he picked her up, he was angry and scared. Pigg exclaimed, "That mother fucker Roots pulled a gun on me and robbed me!" Pigg said that petitioner had taken the rent money that Pigg was carrying. Petitioner had also pulled the trigger on the gun several times, making a clicking sound. Samuels had never before seen Pigg so mad and scared.
Later that night, someone shot at the residence of Pamela Boyce, petitioner's mother, who lived in the same neighborhood as Stribley Park. Petitioner often stayed at the residence. Several shots were fired and caused damage to the house, a vehicle in the driveway, and an adjacent house. Bullets found at the Boyce residence were not a match for Pigg's gun.
The next morning, Pigg took Samuels to Franklin High School for another football game. From a distance, Samuels saw Pigg talking to several men, including petitioner's stepfather, Joe Boyce. The conversation lasted about five minutes, and Pigg left the group of men after giving Boyce a handshake and hug.
After petitioner robbed Pigg and someone shot at the Boyce residence, Pigg and Samuels received numerous phone calls.
Stockton Police Department Detective James Ridenour testified as an expert on Stockton gangs. Detective Ridenour identified indicia that petitioner was an active participant in the East Coast Crips gang, based in southeast Stockton. Petitioner had East Coast Crips gang tattoos, had been arrested with another East Coast Crips gang member, and had been identified by other East Coast Crips gang members as a fellow gang member. He was well-respected in that gang. Petitioner claimed to be an active East Coast Crips gang member when he was booked into jail after being arrested for Pigg's murder. Detective Ridenour testified that respect is the most important thing to gang members. They tend to retaliate violently for any perceived lack of respect.
Yuronda Breed, the mother of petitioner's child, told an officer one day after Pigg's murder that petitioner had told her several days earlier that he was having "serious problems" with Pigg. At trial, she testified that she did not remember anything she had said to the officers, due to her drug use at the time of the interview.
Daryl Walters was the owner of the smoke shop where Pigg was killed. He was there on the day of the shooting, and had entered the shop with his young children just ahead of Pigg. He heard shots and pushed his children to the ground. He fired his own gun at the assailant after Pigg fell to the floor.
Hilda Loza owned a hair salon next door to the smoke shop. She saw a man in a blue, hooded sweatshirt walk past her business. He glanced in toward her and kept walking. She saw the man walk into the smoke shop, and then she heard gunshots. Detective Lopez was present on the day of the shooting when Loza was shown a photographic lineup. Loza looked at it for about 16 seconds before tapping on petitioner's photo (number four in the lineup) and saying: "Oh, my God. Oh, my God. . . . That's him." Her demeanor then changed as she became nervous and frightened and started backpedaling, saying that it is between photographs four and five. She noted that the eyes and complexion of number four were more like the person she saw, but the facial hair was more like number five's. She did not remember seeing a tattoo on the person's face as depicted in petitioner's photo. At trial, Loza testified that she remembered saying the assailant's eyes were like number four, but did not remember the other statements. Looking at photo number four frightened her.
Daryl Walters's fiancée, Iisha Willis, was in her car behind the smoke shop when she heard the shots fired. As she drove around the corner, she saw the assailant in the blue, hooded sweatshirt. Thinking the man had shot Walters, Willis followed the assailant in her car. The assailant took his hood off and looked at her. He then took off the sweatshirt and continued running away from the smoke shop. Willis followed him for a short distance, yelling at him, before he disappeared over a fence. When she was shown the photo lineup by police, Willis stated that the persons in photos one and two had faces shaped similar to the assailant's face and that number one matched the assailant's complexion. She did not identify petitioner's picture, which was photo number four. At trial, Willis identified petitioner as the man she followed in her car. It was the first time she had seen him in person since the day of the murder.
Officer Raquel Betti testified that she heard a woman screaming and cussing outside while she was conducting an investigation in a nearby bar. Officer Betti went outside and saw Willis in her car following a man in a blue, hooded sweatshirt. Officer Betti had only a side view of the man and could not positively identify the man in the photo lineup. Her report stated that petitioner's photo was "consistent with the subject I had seen running." At trial, she said that the defendant looked "just like" the man she saw.
Armando Gutierrez heard the gunshots and saw a man running toward them in a blue, hooded sweatshirt. Armando identified petitioner when shown the photo lineup later that day. At trial, however, Armando could not identify the defendant as the man he saw.
Armando's mother, Theresa Gutierrez was with Armando when they saw the assailant. She was unable to identify petitioner from the photo lineup.
Armando's sister, Elsa Castaneda Gutierrez, was also with Armando and their mother when they heard the gunshots and saw the assailant. She made eye contact with the man. Elsa identified petitioner in the photo lineup. She also identified petitioner at trial.
Maxx Chavez heard the gunshots and saw a man in a black, hooded sweatshirt run away from the smoke shop. When shown the photo lineup, Chavez pointed to a few of the pictures but did not specifically identify petitioner. About a week after the murder, however, Chavez saw petitioner's picture on the television news and recognized him as the assailant. At trial, Chavez identified petitioner as the assailant.
Patricia Solano saw the assailant walk through her backyard. She tentatively identified petitioner from the photo lineup, saying petitioner's photo looked like the man she saw.
On October 23, 2007, police pulled over a car in which petitioner was a passenger, and arrested him for the Pigg shooting. Petitioner had a small, loaded revolver in his pocket. At the police station, a baggie containing cocaine fell out of his pants leg.
The defense presented evidence that various eyewitnesses had given inconsistent statements or prior descriptions of the assailant that did not match petitioner. The defense also presented evidence that Daryl Walters expected to receive benefits from the district attorney's office in exchange for his testimony, including assistance relocating his business.
On February 18, 2009, the jury acquitted petitioner on count 8 (attempted escape) but found him guilty of the remaining counts (1, 2, and 4 through 7) and further found the gun-use and bail enhancements to be true. 4 CT 881-895. In a bifurcated proceeding outside of the jury's presence, petitioner admitted the prior strike and prison term allegations. 10 RT 2704-2709.
On April 14, 2009, the trial court dismissed count 3 (attempted robbery) and count 4 (transporting cocaine) on the prosecution's motion. 4 CT 1063. Petitioner was sentenced on the remaining counts and enhancements to an aggregate term of 78 years to life imprisonment. 4 CT 1071-1073.
Petitioner timely appealed, and the California Court of Appeal affirmed the judgment of conviction on October 6, 2011. Lodged Doc. 4.
Petitioner filed a first petition for writ of habeas corpus in the Superior Court of San Joaquin County on July 20, 2012, which was denied without prejudice on the same day. Lodged Docs. 10, 11. Petitioner filed another petition in the superior court on November 27, 2012. Lodged Doc. 12. That petition was denied in a reasoned opinion on January 9, 2013. Lodged Doc. 13.
Petitioner next filed a habeas petition in the California Court of Appeal, which was denied without comment or citation on March 7, 2013. Lodged Docs. 14, 15. Petitioner then filed a habeas petition in the California Supreme Court, which was denied on June 12, 2013 with citation to
By operation of the prison mailbox rule, the instant federal petition was filed August 13, 203.
28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), provides in relevant part as follows:
The statute applies whenever the state court has denied a federal claim on its merits, whether or not the state court explained its reasons.
The phrase "clearly established Federal law" in § 2254(d)(1) refers to the "governing legal principle or principles" previously articulated by the Supreme Court.
A state court decision is "contrary to" clearly established federal law if the decision "contradicts the governing law set forth in [the Supreme Court's] cases."
Review under § 2254(d) is limited to the record that was before the state court.
Petitioner contends that his rights to confrontation and to due process ("constitutional right to fair trial") were violated by the admission against him of hearsay evidence regarding a prior robbery. ECF No. 1 at 5. Specifically, petitioner alleges as follows:
The trial court record reveals the following background information. Tammy Samuels, victim Obed Pigg's girlfriend, testified that Pigg had reported being robbed by petitioner approximately two weeks before his death. Evidence of the robbery was admitted to establish a motive for the homicide. The prosecutor's theory of the case was that the homicide culminated a cycle of retaliation: petitioner had first robbed Pigg, then suspected Pigg (rightly or wrongly) of shooting up petitioner's mother's house in retaliation for the robbery, and finally killed Pigg in retaliation for the shooting of the house.
The admissibility of motive evidence generally, and the victim's statements to Samuels specifically, was extensively litigated.
Before the jury, Samuels testified that she went to Stribley Park with Pigg and left him by his car when she went to watch the football game. From a distance she saw Pigg, his friend Robert Ware, and a third man engaged in what she thought was horseplay, slinging each other around. Next she saw Pigg running, then taking off in his car. A few seconds later he called her, yelling and screaming for her to get out of the park and meet him at the handball court. When he picked her up, he said, "That mother fucker Roots pulled a gun and robbed me." 3 RT 726. Samuels continued, "He just kept saying it and yelling and screaming. I'd never seen him so mad and so scared on all my life. In our whole relationship, I've never seen him like that." 3 RT 726. Pigg also told Samuels that "Roots was clocking, clicking the gun, playing with his life." 3 RT 727.
"As applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice. In order to declare a denial of it we must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial."
The admission of evidence is generally a matter of state law, and habeas relief does not lie for errors of state law.
The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to . . . be confronted with the witnesses against him." The Confrontation Clause prohibits the admission of testimonial out-of-court statements by non-testifying individuals.
Petitioner raised his due process challenge to admission of Samuels' hearsay testimony on direct appeal. Because the California Supreme Court denied discretionary review, the opinion of the California Court of Appeal constitutes the last reasoned decision on the merits and is the subject of habeas review in this court.
Petitioner's Confrontation Clause challenge to Samuels' hearsay testimony was presented to the California Supreme Court in a petition for writ of habeas corpus. Lodged Doc. 16 at 3 (citing
Respondent contends that petitioner's confrontation clause claim is procedurally defaulted, because it was rejected on procedural grounds by the California Supreme Court. ECF No. 14 at 22-24. As a general rule, a federal habeas court "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment."
Here the state court rejected petitioner's habeas petition with citation to
A petitioner can overcome a procedural default by demonstrating cause and prejudice.
Apart from the cause and prejudice inquiry, application of the default doctrine requires evaluation of the "adequacy" of the state rule invoked to bar relief in state court. To be deemed adequate, the rule must be well established and consistently applied at the time of the purported default.
A federal court may bypass consideration of a procedural bar issue in the interests of judicial economy, where the asserted default presents complicated questions and the other issues are resolvable against the petitioner.
The state court's rejection of this claim did not involve an objectively unreasonable application of clearly established federal law. The confrontation claim fails because Pigg's statements to his girlfriend were not "testimonial statements" which implicate the core of the Confrontation Clause.
No matter how meritorious petitioner's hearsay argument, the admissibility of non-testimonial hearsay is a question of state law that this court may not revisit.
Petitioner's alternative due process theory does not support relief, because the trial was not rendered fundamentally unfair by the disputed hearsay. The U.S. Supreme Court has explained that the improper admission of evidence does not render a trial fundamentally unfair where the evidence is subject to adversarial testing, and the jury is properly instructed.
In light of the record as a whole, there is no likelihood that the prosecution's burden of proof was undermined by the jury's consideration of the robbery evidence, or that the trial was otherwise rendered fundamentally unfair. Certainly there was nothing objectively unreasonable about the state court so concluding. And because no Supreme Court precedent holds that due process is violated by the admission of non-testimonial hearsay, or motive evidence in general, relief is not available here.
Petitioner alleges as follows:
ECF No. 1 at 7.
The trial court record reflects that defense counsel moved in limine to exclude motive evidence generally and Tammy Samuels' hearsay testimony about the robbery in particular. 3 CT 714-720. Defense counsel cross-examined Samuels at an in limine hearing pursuant to Cal. Evid. Code § 402, 1 RT 53-135, and subsequently filed a brief arguing that her hearsay testimony was inadmissible, 3 CT 756-763. Counsel argued that there was no credible evidence to establish that petitioner had robbed Pigg. 2 RT 371. Counsel renewed the hearsay objection when Samuels testified. 3 RT 725.
To establish a constitutional violation based on ineffective assistance of counsel, a petitioner must show (1) that counsel's representation fell below an objective standard of reasonableness, and (2) that counsel's deficient performance prejudiced the defense.
Respondent represents that this claim was submitted to the California Supreme Court in petitioner's state habeas petition. ECF No. 14 at 24. Although that petition as a whole was rejected with citation to
If this claim was indeed presented to the California Supreme Court in habeas, then its denial would be unexplained and this court's review would be guided by
This exhaustion problem is another procedural rabbit-hole the court chooses to avoid. Relief may not be granted on an unexhausted claim, but it may be denied. § 2254(b)(1)(A), (b)(2). For the reasons that follow, the claim fails whether it is reviewed deferentially, as a silent denial, or under the de novo standard.
If petitioner's ineffective assistance of counsel claim was considered by the California Supreme Court, it was not unreasonably denied. Conclusory allegations are insufficient to support a collateral attack on a conviction.
The section 402 hearing was vigorously litigated. Petitioner contends that an objection on personal knowledge grounds pursuant to Cal. Evid. Code § 702 would have kept out the evidence of the robbery, but the objection is unlikely to have succeeded. The hearsay objections counsel did make, which fully addressed the fact that Samuels was testifying to something she had heard from Pigg and not something she had personally observed, were overruled and that decision was upheld on appeal. There is no reason to think that the result would have been different had the objection been couched in personal knowledge terms. Accordingly, the claim fails insofar as it is predicated on failure to make an objection under Cal. Evid. Code § 702.
For all these reasons, relief is not available on Claim Two under any standard of review.
Petitioner alleges as follows:
ECF No. 1 at 8.
The trial court record reflects that petitioner moved during trial to exclude a number of statements made by Yuronda Breed, the mother of petitioner's child, which were included in a police report. 3 CT 815-816. The court excluded all the statements but one: Breed's statement that petitioner told her he was having "serious problems" with Pigg. The court ruled that this statement was admissible as a party admission. 7 RT 1968-1969. When Breed testified, she claimed not to remember what she had told the police. 7 RT 1756. Officer Hutto then testified that he had interviewed Breed, and she stated "that James Roots had told her he was having serious problems with Obed Pigg." 7 RT 1767.
The admission of evidence is generally a matter of state law, and habeas relief does not lie for errors of state law.
The Confrontation Clause prohibits the admission of testimonial out-of-court statements by non-testifying individuals.
Petitioner raised the Breed hearsay issue on appeal, as part of his general challenge to motive evidence. Lodged Doc. 7 at 20. Because the California Supreme Court denied the petition for review without comment, this court looks through to the California Court of Appeal's reasoned opinion. As noted previously, the intermediate appellate court rejected petitioner's due process challenge to hearsay and motive evidence in broad terms: "Since there was no mistake in allowing the prosecutor to pursue the motive theory, the defendant's contention that the trial was unfair and violated his due process rights is without merit." Lodged Doc. 4 at 16-17.
The confrontation aspect of the claim was presented for the first time in petitioner's state habeas petition. Respondent contends that the California Supreme Court's denial of the petition on
The state court did not unreasonably apply any clearly established federal law, and petitioner's claim fails even without recourse to AEDPA deference. Petitioner's underlying statements to Breed were not "testimonial statements" and therefore do not come within the scope of the confrontation clause as identified by the Supreme Court.
Moreover, because the evidence of Breed's statement was subject to adversarial testing, petitioner was not denied a fundamentally fair trial.
For all these reasons, petitioner is not entitled to relief on Claim Three.
Petitioner alleges as follows:
ECF No. 1 at 10.
The trial court record reveals that police community services officer Maureen Hopson testified regarding the October 5, 2007 shooting of the home of Pamela Boyce, petitioner's mother. Officer Hopson responded on the morning of October 6 to follow up on a report of a shooting the night before. She observed bullet-holes in the walls of the house, the car parked in the driveway, and the house next door. The prosecution also introduced evidence that petitioner had given the Boyce address as his address when he was booked after arrest. The prosecutor was permitted to argue that the sequence of events — petitioner's robbery of Pigg, closely followed by the shooting of a residence associated with petitioner, after which petitioner stated that he had a serious problem with Pigg — supported an inference that petitioner believed Pigg was responsible for the shooting of the house. This inference was an integral part of the prosecution's motive theory.
The admission of evidence is generally a matter of state law, and habeas relief does not lie for errors of state law.
Petitioner's due process challenge to admission of the residential shooting evidence was presented on appeal as part of his overall due process challenge to the prosecution's motive evidence. That argument was rejected as follows: "Since there was no mistake in allowing the prosecutor to pursue the motive theory, the defendant's contention that the trial was unfair and violated his due process rights is without merit." Lodged Doc. 4 at 16-17.
The state court's rejection of this claim did not unreasonably apply clearly established federal law. The U.S. Supreme Court has never held that the admission of motive evidence in particular, or prejudicial evidence in general, violates due process. Accordingly, the AEDPA precludes relief in this court.
Short of a due process violation under clearly established federal law, the propriety of motive evidence is a state law question which is not subject to review here. Because no clearly established due process precedent forbids the evidence at issue here, § 2254(d) bars relief.
For all the reasons explained above, the state courts' denial of petitioner's claims was not objectively unreasonable within the meaning of 28 U.S.C. § 2254(d). Even without reference to AEDPA standards, petitioner has not established any violation of his constitutional rights. Accordingly, IT IS HEREBY RECOMMENDED that the petition for writ of habeas corpus be denied.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." If petitioner files objections, he shall also address whether a certificate of appealability should issue and, if so, why and as to which issues.
