JAMES K. SINGLETON, Jr., Senior District Judge.
Jaivonne Flenory-Davis, a state prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Flenory-Davis is in the custody of the California Department of Corrections and incarcerated at the California Correctional Center in Susanville. Respondent has answered, and Flenory-Davis has replied.
On June 13, 2012, Flenory-Davis was charged with murder (count 1) and attempted murder (count 2). The information alleged as to both counts that Flenory-Davis used and intentionally and personally discharged a firearm causing great bodily injury or death. The information also alleged as to both counts that Flenory-Davis committed the offenses for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, and assist in criminal conduct by gang members. It was additionally alleged as to count 2 that Flenory-Davis personally inflicted great bodily injury and intended to inflict such injury. The information further alleged that Flenory-Davis had suffered a prior serious felony conviction for first-degree burglary. Flenory-Davis pled not guilty to both counts and denied the allegations. Flenory-Davis proceeded to a jury trial on July 9, 2012. On direct appeal of his conviction, the California Court of Appeal laid out the following facts underlying the charges against Flenory-Davis and the evidence presented at trial:
People v. Flenory-Davis, No. C072000, 2014 WL 4088105, at *1-3 (Cal. Ct. App. Aug. 20, 2014).
At the conclusion of trial, the jury found Flenory-Davis guilty of both counts and found true all of the corresponding allegations. The trial court sentenced Flenory-Davis on count 1 to an indeterminate term of 25 year to life imprisonment plus 25 years to life on the corresponding firearm enhancement plus a determinate term of 10 years on the corresponding gang enhancement. Flenory-Davis was also sentenced to an indeterminate term of 7 years to life imprisonment on count 2 plus 25 years to life on the corresponding firearm enhancement plus 10 years on the corresponding gang enhancement. He was also sentenced concurrently on a pending burglary case.
Through counsel, Flenory-Davis appealed his conviction, arguing that: 1) no substantial evidence corroborated the testimony of an accomplice; 2) the trial court misinstructed on the "kill zone theory"; 3) the prosecutor committed misconduct in argument; 4) the trial court made two sentencing errors; and 5) the trial court erred in not awarding actual custody credits. The People conceded the sentencing claims but otherwise opposed the appeal. The Court of Appeal modified the judgment to correct the sentencing errors and remanded for resentencing on count 1, but affirmed the judgment against Flenory-Davis in all other respects in a reasoned, unpublished opinion issued on August 20, 2014. Flenory-Davis, 2014 WL 4088105, at *8. Flenory-Davis petitioned for review in the California Supreme Court, which was denied without comment on October 29, 2014.
Flenory-Davis timely filed a pro se petition to this Court on February 17, 2015. See 28 U.S.C. § 2244(d)(1)(A).
In his pro se Petition before this Court, Flenory-Davis argues that: 1) the accomplice testimony was not sufficiently corroborated; 2) the trial court erred by using an inflammatory "kill zone" instruction that it failed to define; and 3) the prosecutor committed misconduct in a number of ways.
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)). A summary denial is an adjudication on the merits and entitled to deference. Harrington v. Richter, 562 U.S. 86, 99 (2011). 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).
Flenory-Davis first claims that the evidence was insufficient to support his convictions because the primary evidence against him came from an accomplice whose testimony was not sufficiently corroborated. Under California law, uncorroborated accomplice testimony cannot support a criminal conviction. CAL. PENAL CODE § 1111. As the Court of Appeal explained when rejecting Flenory-Davis' claim on direct appeal:
Flenory-Davis, 2014 WL 4088105, at *4.
However, the United States Supreme Court has held that "there is no absolute rule of law preventing convictions on the testimony of accomplices if juries believe them." Caminetti v. United States, 242 U.S. 470, 495 (1917); see United States v. Necoechea, 986 F.2d 1273, 1282 (9th Cir. 1993) ("The uncorroborated testimony of an accomplice is sufficient to sustain a conviction unless it is incredible or insubstantial on its face."). "When we look at the requirements of procedural due process, the use of accomplice testimony is not catalogued with constitutional restrictions." United States v. Augenblick, 393 U.S. 348, 352 (1969). Therefore, the requirement of California Penal Code § 1111 that "`a conviction cannot be had upon the testimony of an accomplice unless it be corroborated' is a matter of state law, which does not implicate a federal constitutional right" and cannot be the basis of federal habeas relief. Barco v. Tilton, 694 F.Supp.2d 1122, 1136 (C.D. Cal. 2010).
As the Ninth Circuit has explained, California's statutory law prohibiting convictions based solely on uncorroborated accomplice testimony is only a state law rule: it is not required by Constitution or federal law. See Laboa v. Calderdon, 224 F.3d 972, 979 (9th Cir. 2000). Thus, because Flenory-Davis' claim is grounded in the state law requirement that accomplice testimony be corroborated, he can show no constitutional violation based on the alleged inadequate corroboration. Takacs v. Engle, 768 F.2d 122, 127 (6th Cir. 1985) ("If uncorroborated accomplice testimony is sufficient to support a conviction under the Constitution, there can be no constitutional right to instruct the jury that it must find corroboration for an accomplice's testimony."); see also United States v. Fritts, 505 F.2d 168, 169 (9th Cir. 1974) (holding on direct review that trial court's failure sua sponte give cautionary instruction on accomplice testimony did not warrant reversal).
In any event, the Court of Appeal reasonably concluded that there was sufficient evidence to corroborate Alexander's testimony:
In short, there is sufficient evidence in the record to corroborate Alexander's testimony identifying [Flenory-Davis] as the shooter.
Flenory-Davis, 2014 WL 4088105, at *4.
This Court is bound by the state appellate court's determination that Alexander's testimony was sufficiently corroborated under state law. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (noting that the Supreme Court has repeatedly held 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."); see also Williams v. Calderon, 52 F.3d 1465, 1480-81 (9th Cir. 1995). Accordingly, Flenory-Davis is not entitled to relief on this claim.
Flenory-Davis next contends that the trial court made two errors with respect to the "kill-zone" instruction offered to the jury. The modified pattern instruction as given in this case was as follows:
Because jury instructions in state trial are typically matters of state law, federal courts are bound by a state appellate court's determination that a jury instruction was not warranted or was not improper under state law. See Bradshaw, 546 U.S. at 76; see also Williams, 52 F.3d at 1480-81. An instructional error, therefore, "does not alone raise a ground cognizable in a federal habeas proceeding." Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1986) (citation omitted).
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. 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).
Flenory-Davis first argues that the term "kill zone" is so inflammatory that its use was unduly prejudicial. The Court of Appeal noted that the argument had been rejected by the Third District Court of Appeal in People v. Campos, 67 Cal. Rptr. 3d. 904, 917 (Cal. Ct. App. 2007), which held that the term "does not invite inferences favorable to either party and does not integrate facts . . . as an argument to the jury." The Flenory-Davis Court agreed, concluding, "The pattern instruction would not tend to inflame the jury, invite it to draw inferences favorable to either party, characterize the evidence adversely to [the] defendant, or tell the jury that a kill zone had been created." Flenory-Davis, 2014 WL 4088105, at *5.
This Court concurs with those state courts that the instruction contained no constitutional infirmity. Indeed, similar constitutional challenges to the "kill zone" instruction have been uniformly rejected. See, e.g., Aleman v. CDCR, No. 14-cv-00728, 2015 WL 3254029, at *16 (E.D. Cal. Jun. 13, 2016); Chaidez v. McDonald, No. 11-cv-10335, 2015 WL 575849, at *28 (C.D. Cal. Feb. 11, 2015); Perez v. Cate, No. 12-cv-6500, 2014 WL 3845093, at *6-7 (C.D. Cal. May 27, 2014), adopted by 2014 WL 3845097 (C.D. Cal. Aug. 5, 2014). When considered in the context of the overall jury instructions and the trial record, it is not reasonably likely that the jury applied the instruction in a way that violated the Constitution. See Estelle, 502 U.S. at 72. The state court's rejection of this claim therefore did not contravene or unreasonably apply federal law, and Flenory-Davis is not entitled to relief on this ground.
Flenory-Davis also argues that the term "kill zone" was not adequately defined by the jury instructions. In rejecting this claim, the Court of Appeal pointed out that the California Supreme Court had previously rejected such an argument in People v. Stone, 205 P.3d 272, 276 (Cal. 2009). Flenory-Davis, 2014 WL 4088105, at *5. In Stone, the California Supreme Court held that the "kill zone" theory was "not a legal doctrine requiring special jury instructions," but was simply a reasonable inference that the jury may draw in a given case. Stone, 205 P.3d at 276; see also People v. Perez, 234 P.3d 557, 564-65 (Cal. 2010) (noting that the "kill zone theory of multiple attempted murder is necessarily defined by the nature and scope of the attack"). Thus, under California law, no further definition of "kill zone" is required. Again, a determination of state law by a state appellate court is binding in a federal habeas action. Hicks v. Feiock, 485 U.S. 624, 629 (1988). Flenory-Davis cites to no Supreme Court authority, and this Court is not aware of any, that mandates that such a phrase be defined in a jury instruction. Flenory-Davis is therefore not entitled to relief on this instructional error claim either.
Finally, Flenory-Davis claims that the prosecutor committed misconduct multiple times in summation. 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).
Flenory-Davis argues that the prosecutor improperly inserted his own opinion on summation. The Court of Appeal considered and rejected this claim as follows:
Flenory-Davis, 2014 WL 4088105, at *6.
Although the Court of Appeal refers to the challenged comment as "vouching," that term does not appear to be an accurate label. See United States v. Wright, 625 F.3d 583, 611 n.15 (9th Cir. 2010) (finding it incorrect to label certain comments by the prosecutor, in which he expressed his personal opinion about the evidence, as "vouching"), superceded by statute on other grounds as stated in United States v. Lloyd, 807 F.3d 1128 (9th Cir. 2015). As the Ninth Circuit has explained, "In the usual case of vouching, the prosecutor does not merely give his impression of the defendant's case, or highlight his own experience; rather, he explicitly assures the government witnesses' veracity." Id. (citations omitted). A prosecutor's reference to how he views the evidence, however, may constitute misconduct. See United States v. Hermanek, 289 F.3d 1076, 1100 (9th Cir. 2002) ("[P]rosecutors' arguments not only must be based on facts in evidence, but should be phrased in such a manner that it is clear to the jury that the prosecutor is summarizing evidence rather than inserting personal knowledge and opinion in to the case."); See United States v. Kerr, 981 F.2d 1050, 1053 (9th Cir. 1992) ("[a] prosecutor has no business telling the jury his individual impressions of the evidence").
But as the Court of Appeal reasonably concluded, Flenory-Davis fails to show that the challenged comment was anything more than harmless. The jurors were instructed repeatedly to base their decisions on the evidence and that statements made by the attorneys are not evidence. Importantly, as the Court of Appeal noted, the prosecutor's comments did not suggest that he was in possession of evidence outside the record. Flenory-Davis has thus failed to show that the comments so infected his trial with unfairness as to make the resulting conviction a denial of due process. Davis v. Woodford, 384 F.3d 628, 644 (9th Cir. 2004).
Flenory-Davis next contends that the prosecutor misstated the facts. The Court of Appeal considered and rejected this claim as follows:
Flenory-Davis, 2014 WL 4088105, at *6.
A prosecutor may not misstate the evidence or refer to facts not in evidence. Darden, 477 U.S. at 181-82; Berger v. United States, 295 U.S. 78, 84-85 (1935) (holding that prosecutor "overstepped the bounds of . . . propriety and fairness" by "misstating the facts in his cross-examination of witnesses; . . . putting into the mouths of such witnesses things which they had not said; . . . suggesting by his questions that statements had been made to him personally out of court, in respect of which no proof was offered; . . . [and] assuming prejudicial facts not in evidence"). But again, a habeas petition alleging prosecutorial misconduct will be granted only when the misconduct did "so infect the trial with unfairness as to make the resulting conviction a denial of due process." Greer v. Miller, 483 U.S. 756, 765 (1987) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)); see also Darden v. Wainwright, 477 U.S. 168, 181 (1986). "[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips, 455 U.S. 209, 219 (1982).
Flenory-Davis fails to demonstrate fundamental unfairness here. The record fully supports the Court of Appeal's conclusion that "[t]he prosecutor merely presented one plausible interpretation of Skye B.'s testimony." Flenory-Davis, 2014 WL 4088105, at *6. 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 Flenory-Davis of a fair trial. This claim therefore also must fail.
Finally, Flenory-Davis argues that the prosecutor improperly appealed to the jury's sympathy by referring to the tragic death of Dupree. Because counsel did not object to the challenged statement at trial, the Court of Appeal found that Flenory-Davis had forfeited the claim on direct appeal. Flenory-Davis, 2014 WL 4088105, at *6. Because Flenory-Davis argued ineffective assistance of counsel with respect to the forfeiture, however, the Court of Appeal discussed the claim nonetheless, and ultimately concluded that counsel had a tactical reason for not objecting:
Flenory-Davis, 2014 WL 4088105, at *7.
That conclusion is both reasonable and supported by the record. The forfeited 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). The state court's application of the procedural bar thus dooms Flenory-Davis' claim here.
Flenory-Davis is not entitled to relief on any ground raised in his Petition.
The Clerk of the Court is to enter judgment accordingly.
