SHEILA K. OBERTO, Magistrate Judge.
Petitioner, Joaquin Maltos Mendietta, is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner presents three grounds for habeas relief: (1) ineffective assistance of trial and appellate counsel;
Additionally, before the Court is Petitioner's motion for summary judgment, (Doc. 16), which the Court recommends denying.
Tamar Pizarro ("Pizaro") lived next door to Petitioner and Maria Rios ("Rios"). On October 22, 2012, Pizaro went to Petitioner's house to borrow a cell phone. As Pizarro approached the door, she heard Petitioner say, "You're cheating on me." When Pizarro knocked on the door, Petitioner opened it and Rios ran out. Rios's head was bleeding and she was "hysterical," stating Petitioner had hit her on the head. Rios went to a neighbor's house and Pizaro returned home.
Rios ran to the home of Shelly Hayworth ("Hayworth"), who called 911, a recording of which was played for the jury at trial. In the call, the neighbor relayed that Rios stated her husband had hit her on the head with a cooking pot and she was bleeding. Rios expressed concern for her two young children, who were still in the home, as it was not known whether Petitioner was still there.
When Police Officer Loren Kasten ("Kasten") responded to the scene, he contacted Hayworth and Rios. Rios had blood on her hands and around her neck. She was "very scared," crying, and shaking, and said she had been hit in the head with a cooking pot. Rios was concerned about her children who were still in the home. Kasten and Rios walked back to Rios's house and found her two-year-old and seven-month-old children sitting on the living room floor, with no one else in the house.
Kasten observed pieces of a broken broom handle with blood on it, blood splatter on the bathroom wall, a t-shirt with blood on it, a pool of blood in the kitchen, and a dented metal pot. Kasten collected information about Petitioner from Rios and then took her to the hospital.
A follow-up investigation was conducted on November 16, 2012, by Detective Bryan Craft ("Craft") after Petitioner was taken into custody. When Craft spoke to Petitioner, Petitioner "spontaneously" stated there had been an argument with Rios over another man who had come to the house, that he saw blood, panicked and ran.
Petitioner told Craft he had been with Rios for six years and they had two children together. Suspecting Petitioner was using narcotics, Craft questioned Petitioner on any recent drug use. Petitioner admitted he had used marijuana the previous night and, after first denying recent methamphetamine use, said he had used methamphetamine six days earlier.
Petitioner waived his Miranda
When Craft asked how Rios was injured, Petitioner maintained that he had not hit her on the head, only on the arm with the broom handle. According to Petitioner, Rios then fell between the wall and the refrigerator, although Petitioner said he may have thrown her down. Petitioner admitted swinging a cooking pot, claiming it hit Rios in the arm and hit the wall and refrigerator, but not Rios's head. Petitioner began to cry and said he had been upset because a man had come to the door asking for Rios.
When Craft asked if Petitioner could have hit Rios on the top of the head as he was hitting her arm, Petitioner said that, if he did, he did not mean to hurt her. Petitioner said he "just went off" and "was enraged." Petitioner fled because he did not want to be caught by the police when he was "all bloody."
The parties stipulated that two telephone calls were made to Rios by Petitioner from jail. Slightly redacted recordings of the calls were played for the jury. In both calls, the operator informed Petitioner and Rios that they were being recorded.
A jury convicted Petitioner of assault with a deadly weapon (Cal. Penal Code § 245(a)(1)); corporal injury to a child's parent (Cal. Penal Code § 273.5(a)); and two counts of cruelty to a child by endangering health (Cal. Penal Code § 273a(b)). Allegations of great bodily injury, (Cal. Penal Code § 12022.7(e)), and personal use of a deadly weapon were found true (Cal. Penal Code § 12022(b)(1)). In a bifurcated proceeding, the trial court found true allegations that Petitioner had suffered two prior serious felony convictions, (Cal. Penal Code § 667(a)(1)), and two prior strike convictions (Cal. Penal Code §§ 667(b)-(i); 1170.12(a)-(d)). Petitioner was sentenced to 24 years.
On August 27, 2015, the California Court of Appeal for the Fifth Appellate District ("Court of Appeal") affirmed Petitioner's conviction. On November 24, 2015, the California Supreme Court denied review.
Petitioner filed his petition for writ of habeas corpus with this Court on October 2, 2017. Respondent filed an answer on February 28, 2018. On March 22, 2018, Petitioner filed a motion for summary judgment.
A person in custody as a result of the judgment of a state court may secure relief through a petition for habeas corpus if the custody violates the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. 362, 375 (2000). On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed thereafter. Lindh v. Murphy, 521 U.S. 320, 322-23 (1997). Under the statutory terms, the petition in this case is governed by AEDPA's provisions because it was filed April 24, 1996.
Habeas corpus is neither a substitute for a direct appeal nor a device for federal review of the merits of a guilty verdict rendered in state court. Jackson v. Virginia, 443 U.S. 307, 332 n. 5 (1979) (Stevens, J., concurring). Habeas corpus relief is intended to address only "extreme malfunctions" in state criminal justice proceedings. Id. Under AEDPA, a petitioner can obtain habeas corpus relief only if he can show that the state court's adjudication of his claim:
28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 U.S. at 413.
"By its terms, § 2254(d) bars relitigation of any claim `adjudicated on the merits' in state court, subject only to the exceptions set forth in §§ 2254(d)(1) and (d)(2)." Harrington v. Richter, 562 U.S. 86, 98 (2011).
As a threshold matter, a federal court must first determine what constitutes "clearly established Federal law, as determined by the Supreme Court of the United States." Lockyer, 538 U.S. at 71. In doing so, the Court must look to the holdings, as opposed to the dicta, of the Supreme Court's decisions at the time of the relevant state-court decision. Id. The court must then consider whether the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law." Id. at 72. The state court need not have cited clearly established Supreme Court precedent; it is sufficient that neither the reasoning nor the result of the state court contradicts it. Early v. Packer, 537 U.S. 3, 8 (2002). The federal court must apply the presumption that state courts know and follow the law. Woodford v. Visciotti, 537 U.S. 19, 24 (2002). The petitioner has the burden of establishing that the decision of the state court is contrary to, or involved an unreasonable application of, United States Supreme Court precedent. Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996).
"A federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Lockyer, 538 U.S. at 75-76. "A state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision." Harrington, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Thus, the AEDPA standard is difficult to satisfy since even a strong case for relief does not demonstrate that the state court's determination was unreasonable. Harrington, 562 U.S. at 102.
In his first ground for habeas relief, Petitioner presents several ineffective assistance of trial and appellate counsel claims. The Court will address each in turn.
The purpose of the Sixth Amendment right to counsel is to ensure that the defendant receives a fair trial. Strickland v. Washington, 466 U.S. 668, 686 (1984). "[T]he right to counsel is the right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970). "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686.
To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate that his trial counsel's performance "fell below an objective standard of reasonableness" at the time of trial and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 688, 694. The Strickland test requires Petitioner to establish two elements: (1) his attorneys' representation was deficient and (2) prejudice to Petitioner. Both elements are mixed questions of law and fact. Id. at 698.
These elements need not be considered in order. Id. at 697. "The object of an ineffectiveness claim is not to grade counsel's performance." Id. If a court can resolve an ineffectiveness claim by finding a lack of prejudice, it need not consider whether counsel's performance was deficient. Id.
Petitioner alleges appellate counsel was ineffective because: (1) he failed to argue prosecutorial misconduct; (2) trial counsel should have objected to the prosecutor's misstatements; (3) trial counsel did not present a defense; and (4) trial counsel should have presented a defense based on post-traumatic stress disorder ("PTSD"). (Doc. 1 at 6.) Respondent counters that Petitioner is not entitled to relief because a fair-minded jurist could agree with the state court's rejection of Petitioner's claims. (Doc. 14 at 10.)
The Fresno County Superior Court addressed several of Petitioner's ineffective assistance of appellate counsel claims on habeas review. The Superior Court addressed Petitioner's first, third, and fourth claims, specifically, that appellate counsel failed to argue: (1) prosecutorial misconduct; (3) that trial counsel did not present a defense; and (4) that counsel should have presented a defense based PTSD. The Superior Court rejected Petitioner's ineffective assistance of appellate counsel claims:
(Lodged Doc. 18 at 2-5.)
Petitioner first claims his appellate counsel was ineffective when counsel failed to raise a claim that the prosecutor misstated the law during closing argument when the prosecutor told the jury (1) that lesser offenses subsumed greater offenses; and (2) they could not find Petitioner guilty of a lesser offense because the victim had been hurt. (Doc. 1 at 26-28.)
During closing argument, the prosecutor told the jury, "You can simply ignore [the lesser included crimes] on the verdict forms. Why? Because those lesser, they encompass the greater, and some of them simply deal with someone not getting hurt." (Lodged Doc. 7 at 629.) Stating a lesser included offense encompasses a greater offense is a misstatement of law; however, Petitioner's trial counsel did not object to the misstatement.
Under California law, because trial counsel did not object to the prosecutor's statements at the time, Petitioner forfeited his claim for prosecutorial misconduct. People v. Clark, 52 Cal.4th 856, 960 (2011). To preserve a claim of prosecutorial misconduct, "a criminal defendant must make a timely and specific objection and ask the trial court to admonish the jury to disregard the impropriety." Id. (internal citation and quotation marks omitted). Consequently, if appellate counsel had raised a prosecutorial misconduct claim before the California Court of Appeal, it would have been rejected because trial counsel did not object to the statements.
A defendant's right to appellate representation does not include a right to present frivolous arguments to the court. McCoy v. Court of Appeals of Wis., Dist. 1, 486 U.S. 429, 436 (1988). An attorney is "under an ethical obligation to refuse to prosecute a frivolous appeal." Id. Further, no U.S. Supreme Court decision holds a "defendant has 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). Appellate counsel cannot be found ineffective for failing to raise an argument that would not have been successful. Morrison v. Estelle, 981 F.2d 425, 429 (9th Cir. 1992). Petitioner's argument would not have been successful, because trial counsel did not object to the prosecutor's statement and the prosecutorial misconduct claim was forfeited. Consequently, appellate counsel was not ineffective for failing to raise the claim.
Petitioner also alleges appellate counsel was ineffective for failing to argue trial counsel was ineffective when trial counsel did not object to the misstatements by the prosecutor. However, Petitioner fails to establish he was prejudiced by trial or appellate counsel's decisions. While the prosecutor incorrectly stated the law as to lesser included offenses, the jury was given jury instructions that correctly defined the charges and lesser included charges. "A habeas court must presume that jurors follow the jury instructions." Doe v. Busby, 661 F.3d 1001, 1017-18 (2011) (internal citations omitted).
Therefore, even if it was unreasonable for trial counsel not to object to the prosecutor's misstatements, because the jury was correctly instructed, and the Court presumes the jury followed the instructions, Petitioner cannot show he was prejudiced by the failure to object. Since Petitioner was not prejudiced by trial counsel's failure to object, he cannot establish that he was prejudiced by appellate counsel's failure to raise this argument.
Petitioner cites the record incorrectly in alleging the prosecutor told the jury that they could not find Petitioner guilty of the lesser crime of battery, rather than corporal injury, because the victim had been hurt. The prosecutor actually stated the victim's injuries supported the greater charges. Specifically, the prosecutor stated domestic battery applies "if someone did not get hurt at all, then you can find that. But in this case, we know by the pictures, the medical evidence, and even by [Petitioner]'s statement, that [Rios] was hurt. And she was hurt substantially, brutally, and with great bodily harm." (Lodged Doc. 7 at 629.) The prosecutor did not misstate the law; therefore, trial counsel did not err in failing to object to the prosecutor's statements, and appellate counsel did not err in failing to raise a claim for ineffective assistance of counsel.
Petitioner claims appellate counsel should have raised an ineffective assistance of counsel claim based on trial counsel's failure to present a defense, and specifically, failure to present a PTSD defense. Petitioner alleges trial counsel should have presented an "unconsciousness defense," pursuant to California Penal Code § 26. (Doc. 1 at 28.) Pursuant to section 26, "All persons are capable of committing crimes except those belonging to the following classes: . . . Four — Persons who committed the act charged without being conscious thereof." Petitioner asserts an unconsciousness defense was appropriate in this case because he had previously been diagnosed with PTSD and other mental health issues. (Doc. 1 at 28.)
In contending an unconsciousness defense was appropriate, Petitioner points to defense counsel's Romero motion
(Lodged Doc. 2 at 357-58.)
While Petitioner presented evidence that he suffered from PTSD, he did not present evidence that he was unconscious during the assault on Rios. When speaking to Craft, Petitioner admitted that he had argued with Rios over "another man who had come to the house, that he saw blood, panicked and ran." People v. Mendietta, (No. F068092) (Cal. Ct. App. Aug. 27, 2015), at 3. After waiving his Miranda rights, Petitioner admitted to causing Rios's injuries, stating he grabbed Rios to question her about another man. Id. Petitioner also stated he hit Rios on the arm with a broom handle and a cooking pot. Id. Petitioner said he "just went off" and "was enraged." Id. When he saw that he was covered in blood, he decided to pick up his shoes and flee the house.
In sum, nothing in the evidence is consistent with an unconsciousness defense. During his interview with Craft, Petitioner did not allege that he was unconscious during the assault on Rios, but instead admitted he committed the assault because he was angry with Rios. Petitioner has not shown it was unreasonable for trial counsel not to present an unconsciousness defense, nor was it unreasonable for appellate counsel to fail to argue trial counsel was ineffective for not presenting the defense.
Even if appellate counsel was ineffective for failing to present this argument, Petitioner cannot show prejudice. The jury found Petitioner guilty of corporal injury to a child's parent, which required a finding that Petitioner "willfully inflict[ed] corporal injury resulting in a traumatic condition." California Penal Code § 273.5(a). CALCRIM No. 840 states "[s]omeone commits an act willfully when he or she does it willingly or on purpose." (Emphasis in original). Thus, the jury necessarily found Petitioner was conscious when he committed corporal injury. Given the jury's finding of willfully inflicting an injury, combined with the strong evidence of consciousness, the assertion of an unconsciousness defense would likely not have yielded a more favorable result. Strickland, 466 U.S. at 694. Therefore, appellate counsel was not ineffective for failing to present a claim of ineffective assistance of counsel based on an unconsciousness defense.
For the foregoing reasons, the Court recommends denying Petitioner's ineffective appellate counsel claims.
Petitioner contends his trial counsel was ineffective for failing to: (1) present a defense; (2) present evidence of PTSD; (3) object to prosecutorial misconduct; (4) object to the admission of his jail phone calls; and (5) object to testimony about Petitioner's drug use. Petitioner additionally alleges his trial counsel: (1) failed to effectively argue his prior domestic violence and threats to Rios were inadmissible; (2) erroneously filed a premature request for acquittal pursuant to California Penal Code § 1118; (3) wrongly filed a motion to strike a prior conviction that was not charged; and (4) performed deficiently by filing a motion to strike a prior serious felony allegation. (Doc. 1 at 8, 9, 13, 34-37.) Respondent counters that Petitioner is not entitled to relief because a fair-minded jurist could agree with the state court's rejection of Petitioner's claims. (Doc. 14 at 15.)
The Court addressed Petitioner's first three ineffective assistance of trial counsel claims in conjunction with addressing his ineffective assistance of appellate counsel claims. Because the Court found no prejudice from counsel's decisions during trial, the Court will not readdress the claims.
Petitioner makes six additional ineffective assistance of trial counsel claims that the Court will address. Specifically, Petitioner alleges trial counsel: (1) failed to adequately object to the admission of his jail telephone calls; (2) failed to object to testimony about his drug usage; (3) failed to effectively argue his prior domestic violence and threats to Rios were inadmissible; (4) erroneously filed a premature request for acquittal pursuant to California Penal Code § 1118; (5) wrongly filed a motion to strike a prior conviction that was not charged; and (6) performed deficiently by filing a motion to strike a prior serious felony allegation. (Doc. 1 at 8, 9, 34-37.)
Petitioner alleges evidence of his jail phone calls was improperly admitted and trial counsel was ineffective for failing to adequately object to their admission. (Doc. 1 at 12.) The California Court of Appeal determined, based on state law, that the phone calls were properly admitted and rejected Petitioner's claims on that basis.
The California Court of Appeal rejected Petitioner's claim that the trial counsel was ineffective for failing to adequately object to the admission of jail phone calls:
(Lodged Doc. 14 at 4-10.)
To the extent Petitioner's claim is predicated on state law, it is not cognizable on federal habeas review. Issues regarding the admission of evidence are matters of state law, generally outside the purview of a federal habeas court. Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009). "The admission of evidence does not provide a basis for habeas relief unless it rendered the trial fundamentally unfair in violation of due process." Johnson v. Sublett, 63 F.3d 926, 930 (9th Cir. 1995). "[T]he Due Process Clause does not permit the federal courts to engage in a finely tuned review of the wisdom of state evidentiary rules." Marshall v. Lonberger, 459 U.S. 422, 438 n. 6 (1983).
"Although the [U.S. Supreme] Court has been clear that a writ should be issued when constitutional errors have rendered the trial fundamentally unfair, see Williams, 529 U.S. at 375. . ., it has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ." Holley, 568 F.3d at 1101. Therefore, the Court of Appeal could not have contravened federal law through the admission of the gang evidence when federal law is not clearly established. Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) ([T]his Court has held on numerous occasions that it is not `an unreasonable application of' `clearly established Federal law' for a state court to decline to apply a specific legal rule that has not been squarely established by this Court.").
To the extent Petitioner is making a federal claim based on ineffective assistance of counsel, the Court recommends denying the claim. Trial counsel objected to the phone calls being admitted at trial and those objections were denied by the trial court. Even if counsel had not objected to the admission of this evidence, Petitioner could not show ineffective assistance of counsel, because the failure to object to admissible evidence does not constitute ineffective assistance of counsel, as it is neither outside the range of professionally competent assistance, nor prejudicial. United States v. Bosch, 914 F.2d 1239, 1247 (9th Cir. 1990) (citing United States v. Vaccaro, 816 F.2d 443, 455 (9th Cir. 1987) (failure to challenge search of defendant's house was not ineffective assistance of counsel where defendant failed to show that the evidence gained thereby would have been suppressed, or that there was a reasonable probability that he would have been acquitted had this evidence been excluded)).
Petitioner asserts his rights to due process, a fair trial, and effective assistance of counsel were violated when the trial court allowed Craft to testify regarding Petitioner's drug use. (Doc. 1 at 13.) Respondent counters that the statements were properly admitted as they were relevant to Petitioner's credibility and were related to the charges.
The California Court of Appeal denied Petitioner's claim that evidence of his drug use was improperly admitted at trial:
Petitioner's claim is based on the trial court's decision to allow testimony about his drug use. As the Court previously noted, "[t]he admission of evidence does not provide a basis for habeas relief unless it rendered the trial fundamentally unfair in violation of due process." Johnson 63 F.3d at 930. Because the admission of evidence of Petitioner's drug usage does not provide a basis for habeas relief, Petitioner's claim that the decision violated his Due Process Rights must fail.
Even if trial counsel should have objected to the testimony, Petitioner's federal claim for ineffective assistance of counsel fails, because Petitioner cannot show prejudice. The trial court determined the testimony was admissible and trial counsel's failure to object to admissible evidence does not constitute ineffective assistance of counsel. Bosch, 914 F.2d at 1247.
Finally, Petitioner alleges trial counsel made the following mistakes: (1) he failed to effectively argue his prior domestic violence and threats to Rios were inadmissible; (2) he erroneously filed a premature request for acquittal pursuant to California Penal Code § 1118; (3) he wrongly filed a motion to strike a prior conviction that was not charged; and (4) he performed deficiently by filing a motion to strike a prior serious felony allegation. (Doc. 1 at 8, 9, 13, 34-37.)
The Fresno County Superior Court rejected Petitioner's ineffective assistance of counsel claims based on trial counsel's mistakes when reviewing his petition for writ of habeas corpus:
Petitioner contends trial counsel failed to effectively argue domestic violence incidents and threats towards Rios were inadmissible. (Doc. 1 at 34.) Petitioner points to a colloquy during a pretrial hearing on the prior domestic violence incidents to show counsel was unprepared to represent him. At the hearing, the trial court asked the prosecutor if the prosecutor was going to introduce evidence of prior domestic violence incidents at trial:
(Lodged Doc. 6 at 163-64 (emphasis added)).
Petitioner maintains "[t]his colloquy demonstrates one of the early and many instances documenting [trial counsel]'s incompetence." (Doc. 1 at 35.)
Even if trial counsel was deficient at the pretrial hearing, Petitioner cannot show prejudice. The trial court told counsel he could address the issue of past domestic violence incidents, if the prosecutor tried to introduce the evidence at trial; however, the evidence was never admitted at trial. Because the evidence was not introduced, Petitioner was not prejudiced by trial counsel's performance at the pretrial hearing.
In a motion in limine, trial counsel filed a "Motion to Dismiss Ma[t]ter Because The People Do Not Have Sufficient Corpus To Proce[ed]." (Lodged Doc. 1 at 93.) In the motion, trial counsel argued the case should be dismissed because it did not appear Rios was going to testify at trial.
During the preliminary hearing, the trial court stated:
(Lodged Doc. 6 at 164-65.)
It is clear from the record that trial counsel moved for a judgment of acquittal at the wrong time; however, Petitioner does not explain how this decision prejudiced him. The trial court denied the motion without prejudice; therefore, counsel had the opportunity to make the motion again at the close of evidence.
Petitioner also claims counsel was ineffective when counsel filed a motion to strike a prior conviction that was not charged and strike an enhancement that could not be stricken. (Doc. 1 at 36-37.)
In his Romero motion, trial counsel asked the Court to strike a conviction pursuant to California Penal Code §422,
(Lodged Doc. 9 at 1352-53.)
The Court continued its questioning, "Again, another question to you in terms of your motion, just so I'm clear, does the motion go to the 667(a)
Petitioner alleges these two instances show "a long line of instances in which [trial counsel]'s incompetence was demonstrated on the record. Deficiency is therefore demonstrated. Prejudice to Petitioner is also established as presented. . . ." (Doc. 1 at 37.)
Trial counsel's arguments were legally incorrect; however, Petitioner has not shown these legally incorrect arguments prejudiced him. Although the trial court denied the Romero motion on these counts, Petitioner has not shown that but for these errors, the result would have been different. Consequently, Petitioner fails to show his constitutional rights were violated by trial counsel's performance.
For the foregoing reasons, the Court recommends denying Petitioner's ineffective assistance of trial counsel claims.
In his second ground for habeas relief, Petitioner alleges prosecutorial misconduct based on two statements the prosecutor made to the jury: (1) that lesser offenses subsumed greater offenses; and (2) the jury could not find Petitioner guilty of a lesser offense because the victim had been hurt. (Doc. 1 at 37-38.) Respondent counters the claim is procedurally barred because Petitioner did not raise this claim on direct appeal. (Doc. 14 at 19.)
A prosecutor's improper comments will be held to violate Constitutional rights only if the comments "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Parker v. Matthews, 567 U.S. 37, 45 (2012) (per curiam) (quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986)). Prosecutorial misconduct violates the Due Process guarantee of a fair trial if it prejudicially affects the rights of the defendant. United States v. Yarbrough, 852 F.2d 1522, 1539 (9th Cir. 1988) (citing Smith v. Phillips, 455 U.S. 209, 219 (1982)).
The Court must determine whether the alleged misconduct by the prosecutor rendered the trial fundamentally unfair. Darden, 477 U.S. at 183. To grant habeas relief, the Court must find that the state court's rejection of the prosecutorial misconduct claim "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Parker, 567 U.S. at 47 (quoting Harrington, 562 U.S. at 103).
In rejecting Petitioner's prosecutorial misconduct claim, the Fresno County Superior Court stated:
(Lodged Doc. 18 at 1-2.)
The Court's citation to Dixon means that Petitioner's claim was denied on habeas review, because it could have been, but was not, raised on direct appeal. In California, courts may not consider claims on habeas review that should have first been raised on direct appeal. Dixon, 41 Cal. 2d at 760 ("It is, of course, an established rule that habeas corpus may not be used instead of an appeal to review determinations of fact made upon conflicting evidence after a fair trial."). Pursuant to California law, Petitioner procedurally defaulted on this claim.
A federal court cannot review claims in a petition for writ of habeas corpus if a state court denied relief on the claims based on state law procedural grounds that are independent of federal law and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 750 (1991). "A district court properly refuses to reach the merits of a habeas petition if the petitioner has defaulted on the particular state's procedural requirements." Park v. California, 202 F.3d 1146, 1150 (2000).
A petitioner procedurally defaults his claim if he fails to comply with a state procedural rule or fails to raise his claim at the state level. Peterson v. Lampert, 319 F.3d 1153, 1156 (9th Cir. 2003) (citing O'Sullivan v. Boerckel, 562 U.S. 838, 844-45 (1999)). The procedural default doctrine applies when a state court determination of default is based in state law that is both adequate to support he judgment and independent of federal law. Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991). An adequate rule is one that is "firmly established and regularly followed." Id. (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)); Bennett v. Mueller, 322 F.3d 573, 583 (9th Cir. 2003). An independent rule is one that is not "interwoven with federal law." Park, 202 F.3d 1146 at 1152 (quoting Michigan v. Long, 463 U.S. 1032, 1040-41 (1983)).
When a state prisoner has defaulted on his federal claim in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claim is barred, unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750.
California's procedural default rule is independent of federal law. See Tran v. Sherman, No. 1:15-cv-00716-LJO, 2015 WL 510879 at *1 (E.D. Cal. Aug. 31, 2015); Sanchez v. Ryan, 392 F.Supp.2d 1136, 1138-39 (C.D. Cal. 2005); Protsman v. Pliler, 318 F.Supp.2d 1004, 1007-08 (S.D. Ca. 2004). Consequently, because the Superior Court's denial was based on an independent state procedural rule, denial of the petition was on independent state law grounds.
A state law ground is "adequate" if it is "`firmly established and regularly followed' at the time it was applied by the state court." Poland v. Stewart, 169 F.3d 573, 577 (9th Cir. 1999) (quoting Ford v. Georgia, 498 U.S. 411, 424 (1991)). California's procedural default rule is established and followed in California state courts; therefore, the procedural ground was adequately applied and bars federal review by this Court. See Sanchez, 392 F. Supp. 2d at 1138-39; Protsman, 318 F. Supp. 2d at 1008. Based on the foregoing, California's procedural default rule is adequate and independent. Petitioner does not allege prejudice based on the Superior Court's opinion that his claim was procedurally defaulted; consequently, the Court recommends denying the claim.
In his third ground for habeas relief, Petitioner alleges he is entitled to habeas relief based on the cumulative effect of errors at his trial. (Doc. 1 at 38.) Respondent counters that Petitioner fails to show the California Supreme Court's rejection of this claim was unreasonable. (Doc. 14 at 20.)
The California Supreme Court summarily rejected this claim; consequently, there is no reasoned state court opinion. Because Petitioner raised this claim for the first time in his state habeas petition, which was denied without a written opinion, there is no reasoned state court opinion for the Court to review. This Court must "perform an independent review of the record to ascertain whether the state court decision was objectively unreasonable." Haney v. Adams, 641 F.3d 1168, 1171 (9th Cir. 2011) (internal citations omitted).
Petitioner must show that "there was no reasonable basis" for the California Supreme Court's ruling. Id. (quoting Cullen v. Pinholster, 563 U.S. 170, 188 (2011) (internal quotation marks omitted)). "A habeas 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. (internal quotation marks omitted).
Under the cumulative error doctrine, the combined effect of multiple errors at trial can give rise to a due process violation, if the errors rendered the trial fundamentally unfair, even if each error considered individually would not warrant relief. See Parle v. Runnels, 505 F.3d 922, 928 (9th Cir. 2007). "[T]he fundamental question in determining whether the combined effect of trial errors violated a defendant's due process rights is whether the errors rendered the criminal defense far less persuasive" and thus "had a substantial and injurious effect or influence on the jury's verdict." Id. (internal citation and quotation marks omitted). The Ninth Circuit has "granted habeas relief under the cumulative effects doctrine when there is a `unique symmetry' of otherwise harmless errors, such that they amplify each other in relation to a key contested issue in the case." Ybarra v. McDaniel, 656 F.3d 984, 1001 (9th Cir. 2011) (citing Parle, 505 F.3d at 927).
The Court has addressed each of the errors raised by Petitioner in his petition for writ of habeas corpus and has found no error. Therefore, "[b]ecause we conclude that no error of constitutional magnitude occurred, no cumulative prejudice is possible." Hayes v. Ayers, 632 F.3d 500, 524 (9th Cir. 2011). Accordingly, the Court recommends denying Petitioner's claim of cumulative error.
On March 22, 2018, Petitioner filed a motion for summary judgment. (Doc. 16.) Petitioner requests the Court find Respondent procedurally defaulted by not filing the response to the petition on time. On December 24, 2017, the Court granted Respondent an extension of time in which to file an answer to the petition and set the due date of February 28, 2018. (Doc. 12). The docket shows Respondent filed the answer to the petition on February 28, 2018. (Doc. 14.) Respondent's answer to the petition was not late; therefore, the Court recommends denying Petitioner's motion for summary judgment.
A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition, but may only appeal in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides:
If a court denies a habeas petition, the court may only issue a certificate of appealability "if jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). Although the petitioner is not required to prove the merits of his case, he must demonstrate "something more than the absence of frivolity or the existence of mere good faith on his. . . part." Miller-El, 537 U.S. at 338.
Reasonable jurists would not find the Court's determination that Petitioner is not entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to proceed further. Accordingly, the Court recommends declining to issue a certificate of appealability.
Based on the foregoing, the undersigned recommends that the Court dismiss the petition for writ of habeas corpus with prejudice and decline to issue a certificate of appealability. Further, the undersigned recommends dismissing Petitioner's motion for summary judgment as moot.
These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C 636(b)(1). Within
IT IS SO ORDERED.
California Evidence Code § 1108(a) states, "[i]n a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352."
Petitioner was tried before a jury; therefore, it appears the trial court was referring to California Penal Code § 1118.1:
