JAMES K. SINGLETON, JR., Senior District Judge.
Bobby Joe Mask, 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. Mask is in the custody of the California Department of Corrections and Rehabilitation and incarcerated at Richard J. Donovan Correctional Facility. Respondent has answered, and Mask has replied.
On January 31, 2012, Mask was charged with 15 counts of sexual molestation of his daughter, V.M. The information additionally alleged that Mask had suffered a prior strike conviction for assault with a deadly weapon. Mask pled not guilty, denied the allegation, and proceeded to a jury trial on January 30, 2012. On direct appeal of his conviction, the California Court of Appeal laid out the following facts underlying the charges against Mask and the evidence presented at trial:
People v. Mask, No. C071954, 2014 WL 3697095, at *1-2 (Cal. Ct. App. July 25, 2014).
At the conclusion of trial, the jury convicted Mask of one count of sexual intercourse with a minor 10 years of age or under at the Colonial Apartments, one count of sexual penetration with a minor 10 years of age or younger at the Colonial Apartments, and 7 counts of child molestation with force or duress. Two of the molestation convictions were alleged to have occurred at the Colonial Apartments and the other five convictions were alleged to have occurred at the townhouse on Hallelujah Court. The court also found that Mask had previously been convicted of a serious felony for purposes of the Three Strikes Law.
Through counsel, Mask appealed his conviction, arguing that: 1) the trial court abused its discretion by admitting under California Code of Evidence §§ 1108 and 1101
Mask then filed in the Superior Court a pro se petition for habeas relief that alleged that trial and appellate counsel were ineffective, his Miranda
While the state habeas petitions were pending, Mask timely filed a pro se Petition for a Writ of Habeas Corpus to this Court on October 8, 2015. Docket No. 1; see 28 U.S.C. § 2244(d)(1)(A). This Court, through a previously-assigned magistrate judge, granted Mask's request to stay the federal proceedings to allow him to exhaust his claims in state court. Docket No. 15. Mask subsequently filed an Amended Petition for a Writ of Habeas Corpus (Docket No. 17, "Petition"), which is now before the undersigned judge for adjudication.
In his pro se Petition before this Court, Mask raises the following five grounds for relief: 1) trial and appellate counsel were ineffective for a variety of reasons; 2) his Miranda rights were violated upon his arrest; 3) the trial court erred in admitting at trial evidence of uncharged crimes; 4) the evidence was insufficient to sustain the child molestation with duress convictions; and 5) the trial court erred in failing to disclose to Mask the entirety of the victim's subpoenaed school records.
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).
Mask first argues that trial and appellate counsel were ineffective for a variety of reasons. To demonstrate ineffective assistance of counsel under Strickland v. Washington, a defendant must show both that appellate counsel's performance was deficient and that the deficient performance prejudiced his defense. 466 U.S. 668, 687 (1984). A deficient performance is one in which "counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment." Id.
The Supreme Court has explained that, if there is a reasonable probability that the outcome might have been different as a result of a legal error, the defendant has established prejudice and is entitled to relief. Lafler v. Cooper, 132 S.Ct. 1376, 1385-86 (2012); Glover v. United States, 531 U.S. 198, 203-04 (2001); Williams, 529 U.S. at 393-95. Where a habeas petition governed by AEDPA alleges ineffective assistance of counsel, the Strickland prejudice standard is applied and federal courts do not engage in a separate analysis applying the Brecht harmlessness standard. Avila v. Galaza, 297 F.3d 911, 918, n.7 (9th Cir. 2002); see also Musalin v. Lamarque, 555 F.3d 830, 834 (9th Cir. 2009). Under this rubric, in reviewing ineffective assistance of counsel claims in a federal habeas proceeding:
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (citations omitted); see also Runningeagle v. Ryan, 686 F.3d 758, 775 (9th Cir. 2012).
Thus, Mask must show that counsel's representation was not within the range of competence demanded of attorneys in criminal cases, and there is a reasonable probability that, but for counsel's ineffectiveness, the result would have been different. See Hill v. Lockhart, 474 U.S. 52, 57 (1985). An ineffective assistance of counsel claim should be denied if the petitioner fails to make a sufficient showing under either of the Strickland prongs. See Strickland, 466 U.S. at 697 (courts may consider either prong of the test first and need not address both prongs if the defendant fails on one).
None of Mask's claims satisfy this heavy burden. He first argues that trial counsel was ineffective for failing to object to the testimony of Mask's children and step-children on the ground that the testimony was impermissibly coerced and unlawfully obtained by the prosecutor's threats. But as the state superior court found in rejecting this claim on state habeas review and as discussed more thoroughly infra, the prosecution was "entitled" to present evidence of Mask's prior uncharged similar acts of molestation against his other children and step-children, and the prosecution lawfully issued subpoenas in that regard. While the superior court acknowledged that the children and step-children were reluctant to testify, Mask provides no evidentiary support that they were impermissibly coerced or threatened into testifying. Moreover, all of the witnesses were cross-examined by defense counsel, and Mask does not provide any evidentiary support that the challenged testimony was false either.
Mask additionally contends that trial counsel should have presented motions to suppress evidence and to dismiss charges. But Mask does not specify any grounds upon which to base his motions and thus does not establish any likelihood of success. Such vague and conclusory allegations do not warrant habeas relief as they do not meet the specificity requirement. See Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir. 1995) (conclusory allegations unsupported by a statement of specific facts do not warrant habeas relief); see also Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977) ("the petition is expected to state facts that point to a `real possibility of constitutional error'" (citation omitted)); 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.").
Finally, Mask avers that appellate counsel was ineffective for raising issues on appeal that were too weak for success. However, one of the claims that Mask contends should not have been raised was actually successful on direct appeal. The record indicates that appellate counsel successfully challenged the sufficiency of the evidence on two separate counts which eliminated a term of 35 years to life imprisonment plus 16 years off of Mask's sentence. Mask, 2014 WL 3697095, at *7. Moreover, the claims that Mask complains were not raised on direct appeal were later denied on the merits by the state courts. Mask thus fails to show any reasonable likelihood that such claims would have been successful had appellate counsel raised them on direct appeal. Mask is thus not entitled to relief on any argument advanced in support of these grounds.
Mask additionally argues that he was never warned pursuant to Miranda after his arrest. The requirements of Miranda are "clearly established" federal law for the purposes of federal habeas corpus review under 28 U.S.C. § 2254(d). Juan H. v. Allen, 408 F.3d 1262, 1271 (9th Cir. 2005); Jackson v. Giurbino, 364 F.3d 1002, 1009 (9th Cir. 2004). The Ninth Circuit has held that: (1) Miranda violations are properly considered in federal habeas proceedings; and (2) where statements are used as evidence of guilt and there is no proper instruction to the jury regarding the limited use of such statements, there is the possibility of federal constitutional error. Hinman v. McCarthy, 676 F.2d 343, 348-49 (9th Cir.), cert. denied, 459 U.S. 1048 (1982).
Here, however, the superior court concluded that "petitioner has failed to show how any statement taken in violation of Miranda was used in his case." That finding is fully supported by the record. While the record indicates that the parties, in limine, anticipated the possibility of introducing Mask's statements to a law enforcement officer, a review of the transcript indicates that the officer did not testify as to the content of any statements Mask made. Mask thus fails to establish an actionable violation of his constitutional rights, and he does not show that counsel was ineffective for failing to object. Mask is thus not entitled to relief on this ground.
"It is hornbook law that an amended pleading supersedes the original, the latter being treated thereafter as non-existent. [] Once amended, the original no longer performs any function as a pleading[.]" Doe v. Unocal Corp., 27 F.Supp.2d 1174, 1180 (C.D. Cal. 1998) (quoting Bullen v. De Bretteville, 239 F.2d 824, 833 (9th Cir. 1956), overruled on other grounds by Lacey v. Maricopa Cty., 693 F.3d 896 (9th Cir. 2012) (internal citations omitted)). It does not appear, however, that, by filing his Third Amended Petition, Mask intended to abandon the claims raised in his earlier petition because, for each ground raised in the Third Amended Petition, he contends that the issues "were properly conjoined with Petitioner's existing" initial petition filed on October 8, 2015 (Docket No. 1). Accordingly, given Mask's pro se status, the Court will liberally construe pursuant to Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), Mask's filings to retain the following claims raised in his initial filing at Docket No. 1.
Mask argues that the trial court erred when it admitted pursuant to Evidence Code §§ 1108 and 1101 evidence of his uncharged sex offenses against his daughter L.M. as well as against two of his former girlfriend's daughters, S.S. and S.A.
California Evidence Code § 1108 allows the prosecution to prove a defendant's propensity to commit sex crimes by offering evidence that he has committed other sex crimes. It is an exception to the general rule, reflected in § 1101, that propensity evidence is not admissible. See CAL. EVID. CODE §§ 1101(a), 1108(a). The relevant portion of § 1108 provides:
As an initial matter, Mask cannot prevail on this claim because "[i]ncorrect state court evidentiary rulings cannot serve as a basis for habeas relief unless federal constitutional rights are affected." Lincoln v. Sunn, 807 F.2d 805, 816 (9th Cir. 1987). So, even if the trial court erred in its application of §§ 352 and 1108, such error is not a ground for federal habeas relief. See Estelle, 502 U.S. at 67-68. Indeed, Mask cannot demonstrate that the trial court committed error. The record reflects that the trial court properly weighed the evidence against its potential to cause prejudice and instructed the jury that it may, but was not required, to infer from the evidence that he had a disposition to commit sexual offenses.
Moreover, the Ninth Circuit has repeatedly barred federal habeas petitioners from challenging the constitutionality of prior sexual misconduct evidence admitted to show propensity pursuant to California Evidence Code § 1108. See, e.g., Greel v. Martel, 472 F. App'x 503, 504 (9th Cir. 2012) ("Ninth Circuit precedent `squarely forecloses [the] argument' that admission of evidence of sexual misconduct to show propensity violates due process.") (quoting Mejia v. Garcia, 534 F.3d 1036, 1046 (9th Cir. 2008)); Sanches v. Hedgpeth, 381 F. App'x 710, 711 (9th Cir. 2010) ("[T]he Supreme Court has never held that the admission of prior sexual misconduct to lend credence to a victim's claims to be unconstitutional."); Mejia, 534 F.3d at 1046 (on AEDPA review, upholding admission of evidence of prior uncharged sexual offenses in support of rape charges). In so holding, the Ninth Circuit has cited the United States Supreme Court's express refusal to decide the issue. See Estelle, 502 U.S. at 75 n.5 ("Because we need not reach the issue, we express no opinion on whether a state law would violate the Due Process Clause if it permitted the use of `prior crimes' evidence to show propensity to commit a charged crime."). And because Mask fails to establish that the trial court erred in admitting such evidence, Mask fails to demonstrate that counsel were ineffective for not challenging the admission at trial. Mask is therefore not entitled to relief on this ground.
Mask also challenges, as he did on direct appeal, the sufficiency of the evidence demonstrating that the molestations were committed with force or duress.
It is a fundamental precept of dual federalism that the States possess primary authority for defining and enforcing the criminal law. See Engle v. Isaac, 456 U.S. 107, 128 (1982). Consequently, although the sufficiency of the evidence review by this Court is grounded in the Fourteenth Amendment, it must take its inquiry by reference to the elements of the crime as set forth in state law. Jackson, 443 U.S. at 324 n.16. A fundamental principle of our federal system is "that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus." Bradshaw v. Richey, 546 U.S. 74, 76 (2005); see West v. AT&T, 311 U.S. 223, 236 (1940) ("[T]he highest court of the state is the final arbiter of what is state law. When it has spoken, its pronouncement is to be accepted by federal courts as defining state law. . . ."). "Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension." Sanchez-Llamas v. Oregon, 548 U.S. 331, 345 (2006) (quoting Smith v. Philips, 455 U.S. 209, 221 (1982)) (internal quotation marks omitted).
Under Jackson, this Court's role is simply to determine whether there is any evidence, if accepted as credible by the trier of fact, sufficient to sustain conviction. Schlup v. Delo, 513 U.S. 298, 330 (1995). The United States Supreme Court has recently even further limited a federal court's scope of review under Jackson, holding that "a reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury." Cavazos v. Smith, 132 S.Ct. 2, 4 (2011) (per curiam). Jackson "makes clear that it is the responsibility of the jury—not the court—to decide what conclusions should be drawn from evidence admitted at trial." Cavazos, 132 S. Ct. at 3-4. Under Cavazos, "a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was `objectively unreasonable.'" Id. at 4 (quoting Renico v. Lett, 559 U.S. 766, 773 (2010)).
Mask contends, as he did on direct appeal, that there was no substantial evidence demonstrating that any of the molestations were committed with force or duress as required for the seven convictions of molesting a child "by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury. . . ." CAL. PENAL CODE § 288(b)(1). In rejecting this claim on direct appeal, the Court of Appeal reasoned:
Mask, 2014 WL 3697095, at *6-7.
That conclusion is both reasonable and fully supported by the record. Although it might have been possible to draw a different inference from other evidence, this Court is required to resolve that conflict in favor of the prosecution. See Jackson, 443 U.S. at 326. Mask bears the burden of establishing by clear and convincing evidence that these factual findings were erroneous. 28 U.S.C. § 2254(e)(1). He has failed to carry such burden. Moreover, the California Court of Appeal's conclusion that Mask's parental relationship with the victim, position of dominance and authority, older age and greater size, and continuous exploitation of the victim demonstrated that Mask committed the acts with duress under California law raises an issue of state law that is binding on this Court. Waddington v. Sarausad, 555 U.S. 179, 192 n.5 (2009) (federal court has no "`province . . . to reexamine state-court determinations on state-law questions'"); Bradshaw, 546 U.S. at 76. For the reasons persuasively stated by the Court of Appeal, the record does not compel the conclusion that no rational trier of fact could have found that Mask committed the acts with duress, especially considering the double deference owed under Jackson and AEDPA. Mask is therefore not entitled to relief on his legal insufficiency claim.
Finally, Mask argues the trial court erred in failing to disclose in its entirety the victim's school records. The Court of Appeal considered and rejected this claim on direct appeal as follows:
Mask, 2014 WL 3697095, at *7-8 (citations omitted).
Mask fares no better on federal habeas review. Again, Mask's challenge to the trial court's evidentiary ruling raises no federal question because "alleged errors in the application of state law are not cognizable in federal habeas corpus." Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996); see also Cooper v. Brown, 510 F.3d 870, 1001 (9th Cir. 2007) (claim of evidentiary error "fails to present a federal question cognizable on federal habeas review").
To the extent he reasserts his claim that had a statutory right under California Education Code § 49069 and Family Code § 3025,
Mask is not entitled to relief on any ground raised in his Petition.
The Clerk of the Court is to enter judgment accordingly.
