EDMUND F. BRENNAN, Magistrate Judge.
Petitioner is a state prisoner proceeding without counsel with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges a judgment of conviction entered against him on November 14, 2008, in the Sacramento County Superior Court on charges of burglary, robbery, assault with a deadly weapon, and assault with a firearm, with findings that petitioner personally used and discharged a firearm and that he acted in concert in a home invasion. Petitioner seeks federal habeas relief on the following grounds: (1) the evidence is insufficient to support the jury finding that he intentionally discharged a firearm in connection with the robbery of two of the victims; (2) jury instruction error violated his right to due process; (3) his sentence of 53 years and four months in prison violates his rights under the Eighth and Fourteenth Amendments; (4) his trial and appellate counsel rendered ineffective assistance; and (5) the trial court violated his right to an impartial jury when it failed to excuse two potentially biased jurors. Upon careful consideration of the record and the applicable law, the court finds that petitioner's application for habeas corpus relief must be denied.
In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:
People v. Gallien, No. C061809, 2011 WL 302850, **1-2 (Cal.App. 3 Dist. Feb. 1, 2011).
After petitioner's judgment of conviction was affirmed by the California Court of Appeal, he filed a petition for review in the California Supreme Court. Therein, he raised the same claims that he had raised on direct appeal. Resp't's Lodg. Doc. 9. By order dated April 13, 2011, the petition for review was summarily denied. Resp't's Lodg. Doc. 10.
Petitioner subsequently filed a petition for writ of habeas corpus in the Sacramento Superior Court. Resp't's Lodg. Doc. 11. Therein, he claimed that his trial and appellate counsel rendered ineffective assistance and that juror bias violated his right to a fair trial. Id. On March 13, 2012, the Superior Court denied those claims in a reasoned decision. Resp't's Lodg. Doc. 12. On May 2, 2012, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, raising the same claims. Resp't's Lodg. Doc. 13. By order dated July 13, 2012, that petition was summarily denied.
An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S. ___, ___, 131 S.Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).
Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:
For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the last reasoned state court decision. Thompson v. Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, ___ U.S. ___, 132 S.Ct. 38 (2011); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Circuit court precedent "may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)). However, circuit precedent may not be "used to refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has not announced." Marshall v. Rodgers, 133 S.Ct. 1446, 1450 (2013) (citing Parker v. Matthews, 132 S.Ct. 2148, 2155 (2012) (per curiam)). Nor may it be used to "determine whether a particular rule of law is so widely accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court, be accepted as correct." Id. Further, where courts of appeals have diverged in their treatment of an issue, it cannot be said that there is "clearly established Federal law" governing that issue. Carey v. Musladin, 549 U.S. 70, 77 (2006).
A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640 (2003). Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case.
If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").
The court looks to the last reasoned state court decision as the basis for the state court judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). "When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Richter, 131 S. Ct. at 784-85. This presumption may be overcome by a showing "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). Similarly, when a state court decision on a petitioner's claims rejects some claims but does not expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that the federal claim was adjudicated on the merits. Johnson v. Williams, ___ U.S. ___, ___, 133 S.Ct. 1088, 1091 (2013).
Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes, 336 F.3d at 853. Where no reasoned decision is available, the habeas petitioner still has the burden of "showing there was no reasonable basis for the state court to deny relief." Richter, 131 S. Ct. at 784.
A summary denial is presumed to be a denial on the merits of the petitioner's claims. Stancle v. Clay, 692 F.3d 948, 957 & n. 3 (9th Cir. 2012). While the federal court cannot analyze just what the state court did when it issued a summary denial, the federal court must review the state court record to determine whether there was any "reasonable basis for the state court to deny relief." Richter, 131 S. Ct. at 784. This court "must determine what arguments or theories ... could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court." Id. at 786. The petitioner bears "the burden to demonstrate that `there was no reasonable basis for the state court to deny relief.'" Walker v. Martel, 709 F.3d 925, 939 (9th Cir. 2013) (quoting Richter, 131 S. Ct. at 784).
When it is clear, however, that a state court has not reached the merits of a petitioner's claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).
California Penal Code § 12022.53(c) provides: "Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally and intentionally discharges a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 20 years." In his first ground for relief, petitioner claims that the evidence is insufficient to support the jury finding that he intentionally discharged a firearm, within the meaning of this code section, with respect to the robberies of Martinez and Perea. ECF No. 1 at 4. He argues that in order to demonstrate the firearm enhancement, the prosecution was required to prove by substantial evidence that: "(1) petitioner personally discharged the firearm during the commission of each robbery; and (2) he intended to discharge the firearm." Id. at 11. Petitioner argues that the evidence showed he had already completed the robberies of both Martinez and Perea before he discharged the firearm at Harnandis. Id. at 11-14.
Petitioner notes that he was not anywhere near the vicinity of Martinez or Perea at the time he fired the gun. Id. at 14. Therefore, he had reached "a place of temporary safety as to Martinez and Perea." Id. Petitioner contends that "each of three robberies as to each of three victims was a separately charged crime, and cannot be conflated into a single crime for purposes of the enhancement." Id. at 11. He concludes that "there was no substantial evidence petitioner discharged a firearm while robbing either Martinez or Perea, and the true finding on the enhancements violate petitioner's federal and state due process rights." Id. at 11, 20. See also ECF No. 22 at 4-5.
The California Court of Appeal rejected these arguments, reasoning as follows:
Gallien 2011 WL 302850, at **2-3.
The Due Process Clause "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). There is sufficient evidence to support a conviction if, "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). "[T]he dispositive question under Jackson is `whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.'" Chein v. Shumsky, 373 F.3d 978, 982 (9th Cir. 2004) (quoting Jackson, 443 U.S. at 318). Put another way, "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, ___ U.S. ___, 132 S.Ct. 2, *4 (2011). Sufficiency of the evidence claims in federal habeas proceedings must be measured with reference to substantive elements of the criminal offense as defined by state law. Jackson, 443 U.S. at 324 n.16.
In conducting federal habeas review of a claim of insufficient evidence, "all evidence must be considered in the light most favorable to the prosecution." Ngo v. Giurbino, 651 F.3d 1112, 1115 (9th Cir. 2011). "Jackson leaves juries broad discretion in deciding what inferences to draw from the evidence presented at trial," and it requires only that they draw "`reasonable inferences from basic facts to ultimate facts.'" Coleman v. Johnson, ___ U.S. ___, 132 S.Ct. 2060, 2064 (2012) (per curiam ) (citation omitted). "`Circumstantial evidence and inferences drawn from it may be sufficient to sustain a conviction.'" Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995) (citation omitted).
"A petitioner for a federal writ of habeas corpus faces a heavy burden when challenging the sufficiency of the evidence used to obtain a state conviction on federal due process grounds." Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). Because this case is governed by the AEDPA, this court owes a "double dose of deference" to the decision of the state court. Long v. Johnson, 736 F.3d 891, 896 (9th Cir. 2013) (quoting Boyer v. Belleque, 659 F.3d 957, 960 (9th Cir. 2011), cert. denied ___ U.S. ___, 132 S.Ct. 2723 (2012)). See also Johnson, 132 S.Ct. at 2062 ("Jackson claims face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference.").
For the reasons expressed by the California Court of Appeal, a rational trier of fact could have found beyond a reasonable doubt that petitioner intentionally discharged a firearm during the commission of the robberies of all of the victims. The California Court of Appeal concluded, after an analysis of state law, that at the time petitioner discharged the firearm at Harnandis he was still acting "during the commission of" the original robbery, including the robberies of Martinez and Perea. This conclusion by the Court of Appeal is binding on this court. Waddington v. Sarausad, 555 U.S. 179, 129 S.Ct. 823, 832 n.5 (2009) ("we have repeatedly held that `it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions"); Rivera v. Illinois, 556 U.S. 148, 158 (2009) ("[A] mere error of state law. . . is not a denial of due process") (quoting Engle v. Isaac, 456 U.S. 107, 121, n. 21 (1982) and Estelle v. McGuire, 502 U.S. 62, 67, 72-73 (1991)); Bradshaw v. Richey, 546 U.S. 74, 76 (2005) ("a state court's interpretation of state law . . . binds a federal court sitting in federal habeas"); Lewis v. Jeffers, 497 U.S. 764, 780 (1990) ("federal habeas corpus relief does not lie for errors of state law . . . ." Pursuant to California law, the robberies were not complete when petitioner discharged his firearm because he was still in flight and had not reached a place of temporary safety.
The decision of the California Court of Appeal rejecting petitioner's claim that the evidence was insufficient to support the firearm enhancement is not contrary to or an unreasonable application of In re Winship to the facts of this case. Certainly the decision is not "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Richter, 131 S. Ct. at 786-87. Accordingly, petitioner is not entitled to federal habeas relief on this claim.
In his next ground for relief, petitioner claims that the trial court violated his right to due process when it gave a jury instruction that "misstated the law of the escape rule when there are multiple robbery victims." ECF No. 1 at 20-30. The California Court of Appeal described petitioner's arguments in support of this claim, and its ruling thereon, as follows:
Gallien, 2011 WL 302850, at **3-4.
In general, a challenge to jury instructions does not state a federal constitutional claim. McGuire, 502 U.S. at 72; Engle v. Isaac, 456 U.S. 107, 119 (1982)); Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983). "Failure to give [a jury] instruction which might be proper as a matter of state law," by itself, does not merit federal habeas relief." Menendez v. Terhune, 422 F.3d 1012, 1029 (9th Cir. 2005) (quoting Miller v. Stagner, 757 F.2d 988, 993 (9th Cir. 1985)). In order to warrant federal habeas relief, a challenged jury instruction "cannot be merely `undesirable, erroneous, or even "universally condemned,"' but must violate some due process right guaranteed by the fourteenth amendment." Cupp v. Naughten, 414 U.S. 141, 146 (1973). To prevail on such a claim petitioner must demonstrate "that an erroneous instruction `so infected the entire trial that the resulting conviction violates due process.'" Prantil v. State of Cal., 843 F.2d 314, 317 (9th Cir. 1988) (quoting Darnell v. Swinney, 823 F.2d 299, 301 (9th Cir. 1987)). In making its determination, this court must evaluate the challenged jury instructions "`in the context of the overall charge to the jury as a component of the entire trial process.'" Id. (quoting Bashor v. Risley, 730 F.2d 1228, 1239 (9th Cir. 1984)). If a jury instruction is ambiguous, inconsistent or deficient, it will violate due process only when there is a reasonable likelihood that the jury applied the instruction in a manner that violates the constitution. Waddington v. Sarausad, 555 U.S. 179, 190-91 (2009).
Any claim that CALCRIM No. 3261 violated state law, or should be modified to comport with state law, is not cognizable in this federal habeas corpus action. Jeffers, 497 U.S. at 780. To prevail in federal court, petitioner must demonstrate that the giving of this jury instruction rendered his trial fundamentally unfair. Petitioner has failed to make the required showing.
As noted by the California Court of Appeal, any error by the trial court in failing to include the last clause of the jury instruction was harmless because petitioner was unable to demonstrate the second required clause: that he was no longer being chased when he fired his weapon. Further, as noted by the state appellate court, the instructions, when viewed as a whole, correctly instructed the jurors that they were required to find the firearm enhancement true as to each separate offense. Under these circumstances, petitioner has failed to show that CALCRIM No. 3261, as given at his trial, violated his right to due process.
The decision of the California Court of Appeal denying this jury instruction claim is not contrary to or an unreasonable application of the federal authorities set forth above. Accordingly, petitioner is not entitled to habeas relief.
In his next claim for relief, petitioner argues that his prison sentence of 53 years and four months, when compared to the sentences received by his accomplices McLish and Bradford, violated his rights to due process and equal protection. ECF No. 1 at 30-37. He argues that "the disparity in sentencing present in this case constituted an infringement on petitioner's Sixth Amendment right to a jury trial and violated the Due Process and Equal Protection Clauses of the Fifth and Fourteenth Amendments to the United States Constitution." Id. at 31. Petitioner also argues that the sentencing judge imposed such a lengthy sentence solely because petitioner "exercised the constitutionally guaranteed right to stand trial." Id. at 33.
Petitioner raised these same arguments on direct appeal. The California Court of Appeal denied petitioner's claims, reasoning as follows:
Gallien 2011 WL 302850, at **4-6.
As explained above, "it is not the province of a federal habeas court to reexamine state court determinations on state law questions." Wilson v. Corcoran, 562 U.S. 1, ___, 131 S.Ct. 13, 16 (2010) (quoting Estelle, 502 U.S. at 67). So long as a sentence imposed by a state court "is not based on any proscribed federal grounds such as being cruel and unusual, racially or ethnically motivated, or enhanced by indigency, the penalties for violation of state statutes are matters of state concern." Makal v. State of Arizona, 544 F.2d 1030, 1035 (9th Cir. 1976). "Absent a showing of fundamental unfairness, a state court's misapplication of its own sentencing laws does not justify federal habeas relief." Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994). Thus, whether or not the sentencing judge in this case abused his discretion under state law when he imposed petitioner's sentence is not at issue in this federal habeas corpus proceeding.
On federal habeas review, the question "is not whether the state sentencer committed state-law error," but whether the sentence imposed on the petitioner is "so arbitrary or capricious" as to constitute an independent due process violation. Richmond v. Lewis, 506 U.S. 40, 50 (1992). See also Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Hicks v. Oklahoma, 447 U.S. 343, 346 (1980); Laboa v. Calderon, 224 F.3d 972, 979 (9th Cir. 2000). "The failure of a state to abide by its own statutory commands may implicate a liberty interest protected by the Fourteenth Amendment against arbitrary deprivation by a state." Fetterly v. Paskett, 997 F.2d 1295, 1300 (9th Cir. 1993). However, "federal courts are extraordinarily chary of entertaining habeas corpus violations premised upon asserted deviations from state procedural rules." Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir. 1991).
The Eighth Amendment does not require strict proportionality between crime and sentence, but rather forbids only extreme sentences that are grossly disproportionate to the crime. Harmelin v. Michigan, 501 U.S. 957, 959 (1991) (Kennedy, J., concurring in part and concurring in judgment)). The precise contours of the gross disproportionality principle are "unclear and applicable only in the `exceedingly rare' and `extreme' case." Lockyer v. Andrade, 538 U.S. 63, 73 (2003).
This court finds that in this case petitioner's sentence does not fall within the type of "exceedingly rare" circumstance that would support a finding that his sentence violates the federal constitution. Petitioner was convicted of burglary, three counts of robbery in connection with a home invasion, assault with a deadly weapon, and assault with a firearm. Pursuant to United States Supreme Court precedent, petitioner's sentence is not grossly disproportionate to these crimes. See Harmelin, 501 U.S. at 1004-05 (life imprisonment without possibility of parole for possession of 24 ounces of cocaine raises no inference of gross disproportionality); Lockyer (two consecutive twenty-five years to life sentences with the possibility of parole for two petty theft convictions with priors did not amount to cruel and unusual punishment; Ewing v. California, 538 U.S. 11 (2003) (a sentence of twenty-five years to life for felony grand theft under California's Three Strikes law did not violate the Eighth Amendment).
The court also notes that petitioner has not cited any case, and the court has not found one, in which the United States Supreme Court has found that a sentence imposed on a state criminal defendant violated the federal constitution because it was disproportionate to the sentences imposed on other defendants in the same case. Indeed, the Supreme Court has held that a defendant cannot prove a constitutional violation simply by demonstrating that his sentence is disproportionate to those received by other defendants similarly situated. See Pulley v. Harris, 465 U.S. 37, 50-51 (1984). Accordingly, the state court did not unreasonably apply federal law in concluding that petitioner was not entitled to relief with respect to this challenge to his sentence. See Moses v. Payne, 555 F.3d 742, 754 (9th Cir. 2009) ("we conclude that when a Supreme Court decision does not `squarely address[ ] the issue in th[e] case . . . it cannot be said, under AEDPA, there is `clearly established' Supreme Court precedent addressing the issue before us, and so we must defer to the state court's decision"); Earp v. Ornoski, 431 F.3d 1158, 1185 (9th Cir. 2005) (petitioner's ineffective assistance of counsel claim failed under AEDPA because the issue was an "open question" in the jurisprudence of the Supreme Court).
In any event, there is no federal constitutional requirement that co-defendants receive the same sentence. The critical factor for a court in determining whether a sentence is so disproportionate as to constitute cruel and unusual punishment appears to be whether the sentence is grossly disproportionate to the crimes, not whether the sentence is grossly disproportionate to the sentences received by co-defendants. See United States v. Easter, 981 F.2d 1549, 1555-56 (10th Cir. 1992). "[A] defendant cannot rely upon his co-defendant's sentence as a yardstick for his own; a sentence is not disproportionate just because it exceeds a co-defendant's sentence." United States v. Granados, 962 F.2d 767, 774 (8th Cir. 1992). A defendant who claims that he received a disproportionate sentence "[m]ust establish more than the mere fact that other defendants have received less harsh sentences for similar crimes." See United States v. Fry, 831 F.2d 664, 667 (6th Cir. 1987).
Even if a constitutional violation could be shown by demonstrating disproportionate sentences among co-defendants, no such disproportionality exists in this case given the different circumstances of each defendant. As noted by the California Court of Appeal, all but ten years of petitioner's sentence was due to petitioner's prior criminal history and his decision to fire a weapon at Harnandis. The sentences imposed on McLish, Casey, and Bradford reflect the fact that they accepted a plea offer from the government and, in the case of Casey, testified for the prosecution at petitioner's trial. Petitioner, on the other hand, chose not to accept a plea offer but, rather, risked a longer sentence if convicted after a trial. Given that petitioner had a prior criminal record and used a weapon during the commission of the offenses, it was reasonable to expect that he would receive a lengthier sentence than his codefendants.
Petitioner also argues that the trial court "considered the proportionality of petitioner's sentence compared to McLish's and concluded the two were in different positions because McLish pleaded guilty." ECF No. 1 at 34. Petitioner argues this is evidence he was sentenced more harshly because he chose to proceed to trial. Id. This argument is not supported by the record. The sentencing judge did not conclude that petitioner and McLish were in different positions because McLish pleaded guilty, but rather because petitioner fired a weapon and had a prior conviction, which McLish did not. See Reporter's Transcript on Appeal (RT) at 764-67. The judge specifically stated that "equity demands that I look and ensure that the punishment is equal to the facts of the case, not equal in relationship to the punishments handed out to codefendants." Id. at 766.
Finally, petitioner claims, without elaboration, that his sentence violates the equal protection clause. The equal protection clause directs state actors to treat similarly situated people alike. See Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). To prove an equal protection violation, claimants must prove purposeful discrimination, directed at an identifiable or suspect class. McCleskey v. Kemp, 481 U.S. 279, 292 (1987); Kadrmas v. Dickinson Pub. Schs., 487 U.S. 450, 457-58 (1988). A criminal defendant alleging an equal protection violation must specifically prove that the "decisionmakers in his case acted with discriminatory purpose." McCleskey, 481 U.S. at 292 (quoting Wayte v. United States, 597 U.S. 598, 608 (1985)). (emphasis in original). Petitioner's equal protection claim is deficient on its face because it does not allege purposeful discriminatory treatment based on his membership in a suspect class. In addition, petitioner has not demonstrated that the sentencing judge in this case "acted with discriminatory purpose" or selected or affirmed his sentence because of "its adverse effects upon an identifiable group." McCleskey, 481 U.S. at 292, 298.
For the foregoing reasons, petitioner is not entitled to federal habeas relief on his challenges to his sentence.
Petitioner claims that the trial court violated his Sixth Amendment right to trial by an impartial jury in failing to remove two jurors for "potential bias." ECF No. 1 at 6, 47. The first such juror was the baseball coach of the trial judge's son. According to petitioner, the trial judge stated that "he and the coach frequently interact during games." Id. at 47. Petitioner states that he asked both the trial court and his trial counsel to remove this juror "for cause," but they failed to do so. The second juror in question was the jury foreperson, who "stated during the pretrial stages of trial that she had a family member who was a victim of a similar type of crime in which they never caught the suspect." Id. Petitioner explains that he asked the trial court and his counsel to remove this juror as well, but they failed to do so.
The Sacramento Superior Court denied this claim on procedural grounds, reasoning as follows:
Resp't's Lodg. Doc. 12 at 1.
Respondent argues that the California Superior Court's citation to In re Dixon constitutes a state procedural bar which precludes this court from addressing the merits of this Sixth Amendment claim. ECF No. 12 at 31-32.
As a general rule, "[a] federal habeas court will not review a claim rejected by a state court `if the decision of [the state] court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Walker v. Martin, 562 U.S. ___, ___, 131 S.Ct. 1120, 1127 (2011) (quoting Beard v. Kindler, 558 U.S. ___, ___, 130 S.Ct. 612, 615 (2009). See also Maples v. Thomas, ___ U.S. ___, ___, 132 S.Ct. 912, 922 (2012); Greenway v. Schriro, 653 F.3d 790, 797 (9th Cir. 2011); Calderon v. United States District Court (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)). The United States Supreme Court recently held that California's Dixon bar, under which a defendant procedurally defaults a claim raised for the first time on state collateral review if he could have raised it earlier on direct appeal, is a well-established and regularly followed state procedural bar that is adequate to bar federal habeas review. Johnson v. Lee, ___ U.S. ___, 136 S.Ct. 1802 (2016). Accordingly, petitioner's Sixth Amendment claim appears to be procedurally barred. Even if the claim were not barred, it should be denied for the following reasons.
The Sixth Amendment right to a jury trial "guarantees to the criminally accused a fair trial by a panel of impartial, `indifferent' jurors." Irvin v. Dowd, 366 U.S. 717, 722 (1961). See also Ross v. Oklahoma, 487 U.S. 81, 85 (1988); Green v. White, 232 F.3d 671, 676 (9th Cir. 2000). Due process requires that the defendant be tried by "a jury capable and willing to decide the case solely on the evidence before it." Smith v. Phillips, 455 U.S. 209, 217 (1982). Jurors are objectionable if they have formed such deep and strong impressions that they will not listen to testimony with an open mind. Irvin, 81 S. Ct. at 1642 n.3. Not every incident of juror misconduct requires a new trial, however. United States v. Klee, 494 F.2d 394, 396 (9th Cir. 1974). "The test is whether or not the misconduct has prejudiced the defendant to the extent that he has not received a fair trial." Id. A petitioner is entitled to habeas relief on this ground only if it can be established that constitutional error had "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 638 & n.9 (1993); Sassounian v. Roe, 230 F.3d 1097, 1108 (9th Cir. 2000).
"[I]n each case a broad discretion and duty reside[s] in the [trial] court to see that the jury as finally selected is subject to no solid basis of objection on the score of impartiality." Frazier v. United States, 335 U.S. 497, 511 (1948). The trial judge has broad discretion in the questioning of potential jurors during voir dire to detect bias. See, e.g., Mu'Min v. Virginia, 500 U.S. 415, 423-24 (1991). To disqualify a juror for cause requires a showing of either actual or implied bias — "that is . . . bias in fact or bias conclusively presumed as a matter of law." United States v. Gonzalez, 214 F.3d 1109, 1111-1112 (9th Cir. 2000) (quoting 47 Am.Jur.2d Jury § 266 (1995)). Jurors are presumed to be impartial. Irvin v. Dowd, 366 U.S. 717, 723 (1961).
There is no evidence in the record before this court that either of the two jurors in question was biased against petitioner, biased in favor of the prosecution, or unable to listen to the evidence introduced at petitioner's trial with an open mind. The mere fact that one juror was the coach of the trial judge's son and another juror had a relative who was a victim of a similar crime in which authorities never caught the suspect is insufficient, without more, to establish that either juror was biased. Petitioner's unsupported statements that the two jurors in question could not be impartial is insufficient to make the required showing. See James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) ("conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief"). There is also no evidence that either juror expressed hesitation at serving on petitioner's jury, that any juror problems surfaced at trial, or that any of the attorneys brought possible or actual juror bias to the trial judge's attention.
Because there is no evidence of juror bias or that the trial court was aware of any juror bias, petitioner cannot show that the trial court violated his right to an impartial jury in failing to excuse these two jurors. Petitioner has also failed to show that any error by the trial court in failing to remove these jurors had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 638 & n.9. Accordingly, he is not entitled to relief on this claim.
Petitioner's next claim is that his trial and appellate counsel rendered ineffective assistance. After setting forth the applicable legal principles, the court will address these claims below.
The applicable legal standards for a claim of ineffective assistance of counsel are set forth in Strickland v. Washington, 466 U.S. 668 (1984). To succeed on a Strickland claim, a defendant must show that (1) his counsel's performance was deficient and that (2) the "deficient performance prejudiced the defense." Id. at 687. Counsel is constitutionally deficient if his or her representation "fell below an objective standard of reasonableness" such that it was outside "the range of competence demanded of attorneys in criminal cases." Id. at 687-88 (internal quotation marks omitted). "Counsel's errors must be `so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'" Harrington v. Richter, 131 S.Ct. 770, 787-88 (2011) (quoting Strickland, 466 U.S. at 687).
A reviewing court is required to make every effort "to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 669; see Richter, 131 S.Ct. at 789. Reviewing courts must also "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689. This presumption of reasonableness means that the court must "give the attorneys the benefit of the doubt," and must also "affirmatively entertain the range of possible reasons [defense] counsel may have had for proceeding as they did." Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1407 (2011) (internal quotation marks and alterations omitted).
Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id. "The likelihood of a different result must be substantial, not just conceivable." Richter, 131 S.Ct. at 792. A reviewing court "need not first determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Strickland, 466 U.S. at 697.
The Strickland standards apply to appellate counsel as well as trial counsel. Smith v. Murray, 477 U.S. 527, 535-36 (1986); Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989). However, an indigent defendant "does not have a constitutional right to compel appointed counsel to press nonfrivolous points requested by the client, if counsel, as a matter of professional judgment, decides not to present those points." Jones v. Barnes, 463 U.S. 745, 751 (1983). Counsel "must be allowed to decide what issues are to be pressed." Id. Otherwise, the ability of counsel to present the client's case in accord with counsel's professional evaluation would be "seriously undermined." Id. See also Smith v. Stewart, 140 F.3d 1263, 1274 n.4 (9th Cir. 1998) (Counsel is not required to file "kitchen-sink briefs" because it "is not necessary, and is not even particularly good appellate advocacy.") There is, of course, no obligation to raise meritless arguments on a client's behalf. See Strickland, 466 U.S. at 687-88 (requiring a showing of deficient performance as well as prejudice). Thus, counsel is not deficient for failing to raise a weak issue. See Miller, 882 F.2d at 1434. In order to establish prejudice in this context, petitioner must demonstrate that, but for counsel's errors, he probably would have prevailed on appeal. Id. at 1434 n.9.
Petitioner raises several claims of ineffective assistance of trial counsel. His first such claim is the following:
ECF No. 1 at 5. Petitioner explains that two defense witnesses testified they were at a festival with petitioner on the date of the crime. Later evidence introduced by the prosecutor, however, established that the festival actually occurred two days after the crime occurred. Id. at 42. Petitioner complains that his counsel "put both witnesses on the stand without checking the actual date the festival took place and comparing it to the date of the alleged crime." Id. He contends that he "would've been better off if counsel never put up a defence [sic] and forced prosecution to prove their case instead of allowing witnesses to deliver contradicting and inaccurate testimony as to the day and time in which the festival took place." Id. at 44. Petitioner asserts that the case against him was "far from overwhelming" and he argues that "had petitioner had adequate representation along with a reasonable pre-trial investigation it is more than probable there would've been a different outcome." Id. at 43-44.
Petitioner raised this claim for the first time in his habeas petition filed in the California Superior Court. Resp't's Lodg. Doc. 11 at consecutive pgs. 3-6. The Superior Court denied the claim, reasoning as follows:
Resp't's Lodg. Doc. 12 at 2-3.
Petitioner is claiming, in essence, that his trial counsel was ineffective in failing to investigate and discover that petitioner's friends, the Valdezes, were lying or mistaken when they testified that they had spent the day of the crime with petitioner, even though petitioner apparently did not advise counsel that his alibi defense was false. Assuming arguendo that counsel was ineffective in failing to conduct such an investigation, petitioner is unable to demonstrate prejudice with respect to this claim. As noted by the California Superior Court, the evidence against petitioner was overwhelming. In particular, petitioner's co-defendant Erica Casey testified that she told a police officer petitioner was involved in the robbery and that "he was the one shooting." RT at 174-75, 369. Further, if petitioner's counsel had, upon investigation, ascertained that the Valdezes had not spent the day of May 5, 2006 with petitioner, counsel would certainly not have called them to the witness stand to establish an alibi defense. In that event, petitioner would still have been faced with the prosecution evidence against him, with no defense.
The Strickland standard "places the burden on the defendant, not the State, to show a `reasonable probability' that the result would have been different." Wong v. Belmontes, 558 U.S. 15, 27 (2009) (quoting Strickland, 466 U.S. at 694). Petitioner has failed to meet that burden with respect to this aspect of his ineffective assistance of counsel claim. Accordingly, he is not entitled to federal habeas relief.
Petitioner raises two additional claims of ineffective assistance of trial counsel. First, he claims that his trial counsel rendered ineffective assistance in failing to "use peremptory challenges" to remove the two potentially biased jurors, discussed above. ECF No. 1 at 44, 47. Second, petitioner claims that his trial counsel "coerced" him to go to trial, telling him that he "only faced a max sentence of 32 years which was 7 years more than the plea petitioner was offered." Id. at 45. Petitioner raised these two claims for the first time in his habeas petition filed in the California Court of Appeal. Resp't's Lodg. Doc. 13 at consecutive pgs. 6-7. That petition was summarily denied. Resp't's Lodg. Doc. 15. Petitioner raised the claims again in his petition for writ of habeas corpus filed in the California Supreme Court. ECF No. 1 at 44-45. That petition was also summarily denied. Resp't's Lodg. Doc. 17.
Petitioner's claim that his trial counsel rendered ineffective assistance in failing to exercise peremptory challenges against the two potentially biased jurors lacks merit. As discussed above, there is no evidence that these jurors were unable to fairly evaluate the evidence at petitioner's trial or that they had formed such deep and strong impressions that they would not listen to testimony with an open mind. Nor is there any evidence that jury bias prejudiced petitioner to the extent that he did not receive a fair trial. Accordingly, trial counsel did not render ineffective assistance in failing to exercise a peremptory challenge to these jurors.
Petitioner's claim that his trial counsel "coerced" him to go to trial by informing him that he faced a maximum sentence of 32 years in prison should also be denied. The Strickland standards apply to claims of ineffective assistance of counsel involving counsel's advice offered during the plea bargain process. Missouri v. Frye, ___ U.S. ___, 132 S.Ct. 1399 (2012); Lafler v. Cooper, ___ U.S. ___, 132 S.Ct. 1376 (2012); Padilla v. Kentucky, 559 U.S. 356 (2009); Hill v. Lockhart, 474 U.S. 52, 58 (1985); Nunes v. Mueller, 350 F.3d 1045, 1052 (9th Cir. 2003). However, counsel is not "required to accurately predict what the jury or court might find." Id. See also McMann, 397 U.S. at 771 ("uncertainty is inherent in predicting court decisions."). Nor is counsel required to "discuss in detail the significance of a plea agreement," give an "accurate prediction of the outcome of [the] case," or "strongly recommend" the acceptance or rejection of a plea offer. Turner, 281 F.3d at 881. Although counsel must fully advise the defendant of his options, he is not "constitutionally defective because he lacked a crystal ball." Id. The relevant question is not whether "counsel's advice [was] right or wrong, but . . . whether that advice was within the range of competence demanded of attorneys in criminal cases." McMann, 397 U.S. at 771.
Petitioner's unsupported and self-serving statement that he relied on inaccurate advice from his counsel when deciding to proceed to trial fails to establish either deficient performance or prejudice. See, e.g., Womack v. Del Papa, 497 F.3d 998, 1004 (9th Cir. 2007) (ineffective assistance of counsel claim denied where, aside from his self-serving statement, which was contrary to other evidence in the record, there was no evidence to support his claim); Dows v. Wood, 211 F.3d 480, 486 (9th Cir. 2000) (noting that there was no evidence in the record to support petitioner's ineffective assistance of counsel claim, "other than from Dows's self-serving affidavit"); Underwood v. Clark, 939 F.2d 473, 476 (7th Cir. 1991) (defendant's self-serving statement, under oath, that his trial counsel refused to let him testify insufficient, without more, to support his claim of a denial of his right to testify); Elizey v. United States, 210 F.Supp.2d 1046, 1051 (C.D. Ill. 2002) (petitioner's claim that his trial counsel failed to advised him to accept a proffered plea agreement not sufficiently supported where only evidence was petitioner's "own self-serving affidavit and record facts contradicted petitioner's affidavit."). There is no evidence in the record before the court that petitioner's trial counsel guaranteed a certain sentence, that he failed to advise petitioner of his options, or that counsel's advice was outside the range of competence demanded of attorneys in criminal cases. Trial counsel was not required to accurately predict petitioner's eventual sentence.
The decision of the California courts rejecting petitioner's claims of ineffective assistance of trial counsel is not contrary to or an unreasonable application of federal law. Accordingly, petitioner is not entitled to relief on these claims.
In his final claim for relief, petitioner argues that his appellate counsel rendered ineffective assistance in failing to raise on appeal the claims of ineffective assistance of trial counsel and potential jury bias discussed above. ECF No. 1 at 5-6. He also claims that appellate counsel "refused to investigate the possibility of raising other more viable grounds than those for which counsel raised." Id. at 6.
Respondent argues that petitioner's claim regarding insufficient investigation of other claims is unexhausted and should be denied on that basis. ECF No. 12 at 33-34. Assuming arguendo that this part of petitioner's ineffective assistance of appellate counsel claim was not exhausted in state court, this court will recommend that it be denied on the merits. See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State").
The California Superior Court rejected petitioner's argument that his appellate counsel rendered ineffective assistance in not challenging the trial court's failure to excuse two jurors who were potentially biased. The court reasoned as follows:
Resp't's Lodg. Doc. 12 at 3.
The failure of movant's appellate counsel to raise a claim that the trial court violated his federal constitutional rights in failing to excuse two jurors for cause did not constitute an error "so serious as to deprive [movant] of a fair trial." Strickland, 466 U.S. at 687. As explained above, petitioner has failed to demonstrate that any such claim had merit. Thus, his appellate counsel's failure to raise this claim did not constitute deficient performance or prejudice. See Rhoades v. Henry, 638 F.3d 1027, 1036 (9th Cir. 2011) (counsel did not render ineffective assistance in failing to investigate or raise an argument on appeal where "neither would have gone anywhere"); Matylinsky v. Budge, 577 F.3d 1083, 1094 (9th Cir. 2009) (counsel's failure to object to testimony on hearsay grounds not ineffective where objection would have been properly overruled), cert. denied, ___ U.S. ___, 130 S.Ct. 1154 (2010); Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) ("the failure to take a futile action can never be deficient performance").
For the same reason, petitioner is not entitled to relief on his claim that his appellate counsel rendered ineffective assistance in failing to raise on appeal a claim of ineffective assistance of trial counsel or in failing to investigate other, unspecified, appellate claims. As explained above, petitioner has failed to establish that his trial counsel rendered ineffective assistance. Moreover, petitioner has failed to demonstrate that his appellate counsel failed to raise any claim on appeal that would have more merit than the claims that she did raise. This court presumes that appellate counsel exercised her professional judgment to raise the issues on appeal that she considered to be the most meritorious.
For the foregoing reasons, petitioner is not entitled to relief on his claims of ineffective assistance of appellate counsel.
Accordingly, IT IS HEREBY RECOMMENDED that petitioner's application for a 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 fourteen 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." Any reply to the objections shall be served and filed within fourteen days after service of the objections. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In his objections petitioner may address whether a certificate of appealability should issue in the event he files an appeal of the judgment in this case. See Rule 11, Rules Governing Section 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant).
