PHYLLIS J. HAMILTON, District Judge.
This is a habeas corpus case filed pro se by a state prisoner pursuant to 28 U.S.C. § 2254. The court ordered respondent to show cause why the writ should not be granted. Respondent filed an answer and a memorandum of points and authorities in support of it, and lodged exhibits with the court. Petitioner responded with a traverse and a request for an evidentiary hearing. For the reasons set out below, the request and the petition are denied.
On September 10, 2010, a jury convicted petitioner of first degree murder and possession of an assault weapon. Answer, Ex. 1, at 352, 355. The jury also found true an allegation that petitioner personally used a firearm to commit murder. Answer, Ex. 1, at 352. Petitioner was sentenced to a term of fifty years and eight months to life in prison. Answer, Ex. 1, at 361. On March 28, 2012, the California Court of Appeal affirmed the judgment. Resp's Answer, Ex. 11. A petition for review was summarily denied by the California Supreme Court on June 13, 2012. Answer, Ex. 13. A petition for writ of habeas corpus was summarily denied by the California Court of Appeal on December 13, 2012. Answer, Ex. 17. A petition for writ of habeas corpus was summarily denied by the California Supreme Court on May 1, 2013. Answer, Ex. 19.
The facts, as described by the California Court of Appeal, are as follows:
Resp's Answer, Ex. 11, at 1-8 (renumbered footnotes in original).
A district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). The first prong applies both to questions of law and to mixed questions of law and fact, see Williams (Terry) v. Taylor, 529 U.S. 362, 407-09 (2000), while the second prong applies to decisions based on factual determinations, See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
A state court decision is "contrary to" Supreme Court authority, that is, falls under the first clause of § 2254(d)(1), only if "the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams (Terry), 529 U.S. at 412-13. A state court decision is an "unreasonable application of" Supreme Court authority, falling under the second clause of § 2254(d)(1), if it correctly identifies the governing legal principle from the Supreme Court's decisions but "unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. The federal court on habeas review may not issue the writ "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. Rather, the application must be "objectively unreasonable" to support granting the writ. Id. at 409.
Under 28 U.S.C. § 2254(d)(2), a state court decision "based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." See Miller-El, 537 U.S. at 340; see also Torres v. Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000).
When presented with a state court decision that is unaccompanied by a rationale for its conclusions, a federal court must conduct an independent review of the record to determine whether the state-court decision is objectively unreasonable. See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). This review is not a "de novo review of the constitutional issue"; rather, it is the only way a federal court can determine whether a state-court decision is objectively unreasonable when the state court is silent. See Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "Where a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief." See Harrington v. Richter, 131 S.Ct. 770, 784 (2011).
As grounds for federal habeas relief, petitioner asserts that: (1) the prosecution violated his right to due process by failing to disclose a complete transcript of a witness's police station conversation with her daughter; (2) the prosecution violated his right to due process by failing to disclose prior convictions of, and a pending charge against, a witness; and (3) trial counsel's failure to investigate the above-mentioned claims deprived petitioner of his right to effective assistance of counsel. These claims were summarily denied by both the California Court of Appeal and California Supreme Court on petitions for writ of habeas corpus.
Petitioner claims that the prosecution violated its obligation under Brady v. Maryland, 373 U.S. 83, 87-88 (1963), by failing to disclose impeachment evidence when the prosecution failed to provide a complete transcript of witness Tameca Jessie's police station conversation with her daughter. Pet. at 6. Petitioner also argues that the prosecution failed to disclose prior convictions of, and a pending charge against, Jessie. Pet. at 8.
In Brady, the Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87. There are three components to a Brady violation. See Benn v. Lambert, 283 F.3d 1040, 1052 (9th Cir. 2002). First, the suppressed evidence must be favorable to the accused. See United States v. Bagley, 473 U.S. 667, 676 (1985) (citing Brady, 373 U.S. at 87). Second, the evidence must have been suppressed by the government, either willfully or inadvertently. See United States v. Agurs, 427 U.S. 97, 110 (1976). Third, the suppressed evidence must be material to the guilt or innocence of the defendant. See Bagley, 473 U.S. at 676-78. Evidence is deemed prejudicial, or material, only if it undermines confidence in the outcome of the trial. Id. at 676. Evidence is not material for Brady purposes if it is inadmissible under state law. See Smith v. Baldwin, 510 F.3d 1127, 1148 (9th Cir. 2007) (en banc).
Brady has no good faith or inadvertence defense; whether nondisclosure was negligent or by design, it is the responsibility of the prosecutor. See Gantt v. Roe, 389 F.3d 908, 912 (9th Cir. 2004). Moreover, the rule includes evidence "`known only to police investigators and not to the prosecutor.'" See Strickler v. Greene, 527 U.S. 263, 280-81 (1999) (quoting Kyles v. Whitley, 514 U.S. 419, 438 (1995)). In order to comply with Brady, therefore, "`the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in [the] case, including the police.'" Id. (quoting Kyles, 514 U.S. at 437).
A defendant cannot claim a Brady violation if he was "aware of the essential facts enabling him to take advantage of any exculpatory evidence." United States v. Shaffer, 789 F.2d 682, 690 (9th Cir. 1986) (citation omitted); see, e.g., Rhoades v. Henry, 638 F.3d 1027, 1038-39 (9th Cir. 2011) (no disclosure violation where one of three reports pertaining to the same confession was turned over and the reports not turned over added no details not apparent or available from the other sources).
Impeachment evidence is exculpatory evidence within the meaning of Brady. See Giglio v. United States, 405 U.S. 150, 154 (1972). "Brady information includes `material . . . that bears on the credibility of a significant witness in the case.'" United States v. Brumel-Alvarez, 991 F.2d 1452, 1461 (9th Cir. 1993) (quoting United States v. Strifler, 851 F.2d 1197, 1201 (9th Cir. 1988). "Evidence relevant to the impeachment of a witness adverse to the defendant may be favorable and material when the reliability of the witness may be determinative of the defendant's guilt or innocence." United States v. Collins, 551 F.3d 914, 924 (9th Cir. 2009) (internal quotation marks and citation omitted).
While conducting a recorded interview with Jessie, police officers took a break from speaking with her. During the break, a conversation occurred between Jessie and her daughter that was recorded but difficult to understand. Petitioner's trial counsel possessed a recording and transcript of the interview with police and the conversation with the daughter. Petitioner claims that the prosecution violated Brady by providing a transcript of the conversation that listed some of the conversation as unintelligible rather than ascertaining what the parties discussed with an enhanced recording.
This claim fails because petitioner was aware of the "essential facts" enabling him to take advantage of the evidence. As respondent notes, habeas counsel
Moreover, petitioner's assertion that the previously undeciphered portions of the recording are now fully understood is open to interpertation. Habeas counsel states that the Audio Forensic Center of San Francisco greatly increased the audibility of the recording, but the technician had difficulties understanding Jessie due to her thick southern, African-American accent. Pet., Ex. B, Decl. of Marylou Hillberg at 4. A copy of the transcript with additional handwritten notes stating the previously undeciphered portions of the conversation was provided with the petition. Pet., Ex. A. This version was provided with the help of petitioner's mother, who could understand Jessie's accent, and a woman named Vernette Suggs, whose affiliation with the case is not clear. Pet., Ex. B, Decl. of Marylou Hillberg at 4; Pet., Ex. A at 14. The resulting transcript is the "best estimates" of the spoken words. Pet., Ex. A at 14.
Assuming the updated transcript is accurate, there are very few additions that trial counsel did not possess in the original transcript.
As petitioner was aware of the "essential facts" necessary for him to take advantage of the evidence, as the evidence was not material, and as the witness was throughly cross-examined, the state courts' rejection of this claim was not objectively unreasonable and the claim is denied.
Petitioner next claims that the prosecution violated Brady by failing to disclose Jessie's prior misdemeanor conviction for child desertion.
In People v. Sanders, the court held that a conviction for child endangerment is not a crime of moral turpitude for impeachment purposes. 10 Cal.App.4th 1268, 1270 (1992). In that case, the defendant had been impeached with evidence of a prior felony conviction for child endangerment under Cal. Penal Code § 273a(a). Id. The statute read:
Id. at 1273.
The court concluded that a conviction under § 273a(a) "does not necessarily imply a general readiness to do evil or any moral depravity" and thus impeachment of the defendant was improper. Id. at 1275.
Here, Jessie was charged and convicted in Louisiana under La. Rev. Stat. § 14:93.2.1(A) in that "[she], having care, custody or control of a child under the age of 10 years, did desert or abandon such child, knowing or having reason to believe that the child could be exposed to a hazard or danger against which the child could not reasonably be expected to protect himself." Pet., Ex. E-2. When compared with the similar child endangerment statute at issue in Sanders, it is clear that a violation of Louisiana's child desertion statute does not necessarily involve a crime of moral turpitude.
Accordingly, Jessie's misdemeanor conviction for child desertion would not have been admissible at trial, and, regardless, petitioner has not demonstrated that the conviction was material to impeach her credibility in light of the other impeachment evidence. The state courts' rejection of this claim was not objectively unreasonable, and this claim is denied.
Petitioner's claim that the prosecution violated Brady by failing to disclose Jessie's 2004 DUI conviction fails for exactly the same reason that his Brady claim based on Jessie's child desertion conviction fails: evidence of the conviction is inadmissible because the crime does not necessarily involve moral turpitude, and petitioner cannot show that the lack of this impeachment evidence undermines confidence in the jury's verdict.
At the time of petitioner's trial, petitioner was informed that Jessie had one DUI conviction in California, but there was a second California DUI conviction.
Petitioner also argues that the prosecution violated Brady by failing to disclose a criminal damage to property charge against Jessie pending in Louisiana. This claim fails because there is no evidence that the charge involved moral turpitude or that the pending charge was material under Brady. "Evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A `reasonable probability' is a probability sufficient to undermine confidence in the outcome." U.S. v. Bagley, 473 U.S. 667, 682 (1985).
As discussed above, Jessie was impeached at trial with evidence that she had a conviction for embezzlement, that she had been inconsistent in her statements to the police, that she had received money for plane tickets to Louisiana from the homicide detectives, that she had received $1,200 worth of assistance total from the District Attorney's Office after testifying at the preliminary hearing, that she had been intoxicated when she spoke to Sergeant Basa on the phone, that she had driven to the store at the scene of the shooting even though she was not supposed to be driving because she did not have a valid driver's license, and that she had been on her way to purchase alcohol at the time of the shooting even though she was not supposed to be drinking alcohol.
Given the volume of impeachment evidence offered against Jessie at trial, there is no reasonable probability that evidence of the pending charge against Jessie for criminal damage to property in Louisiana would have convinced the jury not to convict petitioner of first degree murder. Where the undisclosed impeachment evidence would have provided no independent basis for impeaching the witness separate from evidence already known to and utilized by the defense, no Brady violation will be found. United States v. Kohring, 637 F.3d 895, 908 (9th Cir. 2011); see Schad v. Ryan, 671 F.3d 708, 715 (9th Cir. 2011) (per curiam) (finding no Brady violation where prosecutor failed to disclose letters requesting leniency for prosecution witness from judge presiding over witness's criminal trial because letters would merely have duplicated grounds for impeaching witness that were actually presented to the jury, and there was strong circumstantial evidence of petitioner's guilt). Accordingly, evidence of Jessie's criminal damage to property charge was not material, and the state courts' rejection of this claim was not objectively unreasonable.
Petitioner claims that trial counsel's failure to investigate the above-mentioned claims deprived him of his right to effective assistance of counsel.
In order to succeed on an ineffective assistance of counsel claim, a petitioner must satisfy the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984), which requires a showing of deficient performance and prejudice. Deficient performance requires a showing that trial counsel's representation fell below an objective standard of reasonableness as measured by prevailing professional norms. See Wiggins v. Smith, 539 U.S. 510, 521 (2003). To establish prejudice, a petitioner must show a reasonable probability that "but for counsel's unprofessional errors, the result of the proceeding would have been different." See Strickland, 466 U.S. at 694.
The court has already determined that evidence of Jessie's other convictions and charges was not material under Brady. Therefore, petitioner's claim of ineffective assistance of counsel fails with respect to trial counsel's failure to discover Jessie's other convictions and charges because petitioner cannot show prejudice.
Even assuming that trial counsel was deficient in failing to enhance the recording of the witness conversation, petitioner fails to demonstrate a reasonable probability that but for trial counsel's failure the outcome of the trial would have been different. Petitioner essentially argues that an enhanced recording or transcript would have enabled trial counsel to impeach Jessie more effectively, but, as already discussed above, the record shows that Jessie was rigorously impeached in any event and there was no material in the enhanced recording that greatly differed from what trial counsel already possessed. Moreover, as set forth above, trial counsel exploited the numerous and massive discrepancies among Jessie's various accounts of the shooting to undermine her credibility. RT 146-156, 162-175.
The jury already had ample cause to discredit some or even all of Jessie's testimony, and thus it is difficult to see how any further impeachment evidence could have affected their decision to convict petitioner of first degree murder. See U.S. v. Schaflander, 743 F.2d 714, 718 (9th Cir. 1984) (holding that counsel's failure to present cumulative evidence does not constitute ineffective assistance of counsel). Accordingly, trial counsel's failure to enhance the recording was not prejudicial, and the state courts' rejection of petitioner's ineffective assistance of counsel claim was not objectively unreasonable.
The federal rules governing habeas cases brought by state prisoners require a district court that denies a habeas petition to grant or deny a certificate of appealability ("COA") in the ruling. See Rule 11(a), Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254 (effective December 1, 2009).
To obtain a COA, petitioner must make "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Section 2253(c)(3) requires a court granting a COA to indicate which issues satisfy the COA standard. Here, the court finds that petitioner's first two claims regarding the Brady material meet the above standard and accordingly GRANTS the COA solely for those claims. See generally Miller-El, 537 U.S. at 327.
Accordingly, the clerk shall forward the file, including a copy of this order, to the Court of Appeals. See Fed. R. App. P. 22(b); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). Petitioner is cautioned that the court's ruling on the certificate of appealability does not relieve him of the obligation to file a timely notice of appeal if he wishes to appeal.
1. For the foregoing reasons, the petition for a writ of habeas corpus is
2. Petitioner's motion for an evidentiary hearing and to appoint counsel (Docket No. 9) is
A Certificate of Appealability is
The clerk shall close the file.
