WILLIAM ALSUP, District Judge.
In this habeas action filed by a state prisoner, the petition is
Petitioner Kimiko Kimio Wilson is currently incarcerated at California State Prison, Corcoran in Kings County, California. Venue is proper as the events giving rise to his conviction occurred in Contra Costa County. 28 U.S.C. 1391(b)(2). Pursuant to 28 U.S.C. 2254, he has filed a petition for writ of habeas corpus challenging a California state court conviction. Petitioner is represented by counsel.
In 2007, a jury in Contra Costa County Superior Court convicted petitioner of committing two counts of first-degree murder and one count of attempted first-degree murder, with a multiple murder special circumstance. The trial court sentenced petitioner to life in prison without the possibility of parole. The California Court of Appeal affirmed the trial court's judgment in an unpublished opinion. The California Supreme Court denied review.
In 2010, petitioner filed a petition for writ of habeas corpus in the Contra Costa County Superior Court. That court denied the petition in January 2011. Petitioner filed three petitions before the California Court of Appeal in February 2011. Those petitions were also denied. The state Supreme Court denied the petition in October 2011.
On October 25, 2011, petitioner filed the instant petition for habeas corpus. The following background facts are taken from the opinion of the California Court of Appeal:
(Dkt. No. 12-1 at 1-17).
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 of Section 2254(d) applies both to questions of law and to mixed questions of law and fact while the second prong applies to decisions based on factual determinations. See Williams v. Taylor, 529 U.S. 362 407-09 (2000); 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 Section 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, 529 U.S. at 412-13. A state court decision is an "unreasonable application of" Supreme Court authority, falling under the second clause of Section 2254(d)(1), if it correctly identifies the governing legal principle from the Supreme Court's decision 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. See id. at 409.
Petitioner asserts thirteen claims for federal habeas relief:
Petitioner's first claim for relief is that insufficient evidence existed to convict him on the theory that he aided and abetted the murders (Petition 28, Traverse 13).
When a challenge is brought alleging insufficient evidence, federal habeas corpus relief is available if it is found that upon the record evidence adduced at trial, viewed in the light more favorable to the prosecution, no rational trier of fact could have found proof of guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis added). Under Jackson, the court must review the entire record when the sufficiency of the evidence is challenged on habeas. Adamson v. Ricketts, 758 F.2d 441, 448 n.11 (9th Cir. 1985). It is the province of the jury to "resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319. "The question is not whether we are personally convinced beyond a reasonable doubt. It is whether rational jurors could reach the conclusion that these jurors reached." Roehler v. Borg, 945 F.2d 303, 306 (9th Cir. 1991). The federal habeas court determines sufficiency of the evidence in reference to the substantive elements of the criminal offense as defined by state law. Jackson, 443 U.S. at 324 n.16.
Petitioner was found culpable of two counts of first-degree murder and one count of attempted first-degree murder, with a multiple murder special circumstance. Petitioner argued in the California Court of Appeal that it was clear that one or more jurors relied on the prosecution's theory that petitioner was not the direct perpetrator of the shootings, but an aider and abettor, and that the theory was not supported by substantial evidence (Petition 28, Traverse 13). The California Court of Appeal agreed that there was a reasonable probability that one or more jurors relied on the aiding and abetting theory, but found that there was sufficient evidence to support a conviction of aiding and abetting. This order agrees.
Under California law "a person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator, and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime." People v. Beeman, 35 Cal.3d 547, 561 (1984). An aider and abettor must share in the principal's criminal purpose or intent. The prosecution must establish intent with respect to the specific offense that the defendant is alleged to have aided and abetted.
The evidence presented at trial was sufficient to support the theory that petitioner aided and abetted in the murders. Petitioner placed both himself and Rauls at the crime scene, and admitted that he was the one who directed Okeigwe to the location. While mere presence at the scene of a crime is alone insufficient to show aiding and abetting, it may be considered with other evidence in determining if that person is an aider and abettor. See People v. Campbell, 25 Cal.App.4th 402, 409 (1994).
In addition to petitioner's presence at the scene of the crime, evidence was presented that Okeigwe had been robbed during the events in question. In final argument, Wilson's counsel agreed that the evidence showed that this was a murder during a drug transaction, the only issue being the identity of the shooter. Wilson testified that Okeigwe was there to conduct a drug transaction and that both he and Okeigwe typically purchased $750 worth of marijuana at a time. Only $134 was found on Okeigwe or in his car. The California Court of Appeal found that a jury could easily have inferred that whoever shot Okeigwe and his companions also stole the cash Okeigwe planned to use to buy the drugs. Jurors could have concluded that Wilson intentionally joined in the commission of a robbery, even if he did not intend to participate in murder. Under the felony-murder doctrine advanced by the prosecution, the jury could have found him liable for first-degree murder if they believed him to be an accomplice in this robbery (Dkt. No. 12-1 at 21-25).
The record also evinces motive. Petitioner testified that Rauls had a motive to kill Okeigwe for telling rival drug dealers that he had been selling drugs in their territory. In light of petitioner's apparently close relationship with Rauls on both a social and business level — petitioner admitted that Rauls was his supplier and his previous contacts with Rauls in Humboldt County suggest his involvement in Rauls's marijuana distribution operations might have been more extensive than he admitted — petitioner may have shared Rauls's interest in seeing Okeigwe dead. Alternatively, a motive for petitioner to kill or rob Okeigwe with another person could have been inferred from Peixoto's testimony that petitioner believed that Okeigwe planned to rob one of petitioner's relatives (RT, Exh. B at 2446).
Petitioner also testified that the purpose of the meeting was to carry out a drug transaction and it could have been inferred that he chose a location where he believed this criminal conduct would not be readily detected. The evidence showed that petitioner called a number five times in rapid succession just before Okeigwe picked him up in Richmond en route to Triangle Court, a pattern that suggests he felt an urgency to contact the person associated with that number before he was picked up by Okeigwe. The first call he made following the murders was to the same number, a mere 20 minutes or so after the shootings. The jury may have found it less than credible that petitioner could not remember the identity of the first person he called after witnessing two cold-blooded murders ((Dkt. No. 12-1 at 22-23). Furthermore, the jury may have considered the calls as evidence that petitioner was attempting to set up the hit on Okeigwe.
Accordingly, there was evidence from which the jurors could readily have concluded that petitioner was fabricating all, or part, of his testimony. Petitioner did not publicly accuse Rauls until the start of trial, almost four years after the killings and three years after Rauls died. At about the time of Rauls's death in April 2004, petitioner asked his mother to send him her phone records from May and June 2003, even though he had been incarcerated since July 2003. Petitioner testified that he did so because he wanted to use the records as a sort of personal phone directory, but this explanation does not explain the timing of the request.
The California Court of Appeal was reasonable in finding that a jury could have concluded that petitioner's dealings after the killings with the person he identified as the perpetrator were not consistent with his testimony that he fled and refused to contact the police out of fear of Rauls, but rather as evidence that he and Rauls continued to cooperate in avoiding the police after the killing. He lived at Rauls' place in McKinleyville, and communicated regularly with Rauls once arrested and incarcerated. Rauls's mother testified that she had the impression that petitioner and her son were friends and she testified that petitioner's brother told her that petitioner and Rauls were "tight." In view of the lack of corroboration that petitioner feared Rauls, the jury could have inferred a consciousness of guilt from his repeated flight — from his grandmother's home after Weaver's call, from Richmond to McKinleyville, from the police during the car chase, and a planned departure from McKinleyville to Atlanta. Detective Peixoto testified that petitioner changed his story about how he went from Richmond to McKinleyville (saying he took the bus during the interview in the police station, but saying he got a ride from a friend during the conversation in the police car), thus suggesting he was lying and losing track of his story (id. at 22-23).
Furthermore, petitioner's own statements to Weaver and Peixoto could reasonably be construed to confirm his role in the killings, at minimum as an accomplice. One of his first reactions to Weaver's report that the police were looking for him was to ask if they wanted him as an accessory. Petitioner implied in his testimony that by "accessory," a term he did not use in its technical legal sense, he meant witness, but the jury could have inferred that he made the comment because he was concerned that the police had determined that he was criminally involved in the killings. Peixoto testified that when he asked petitioner if he had said, "Are they looking for me as an accomplice?" The California Court of Appeal found that this statement "arguably disclos[es] [a] consciousness of guilt" (id. at 23). Peixoto also testified that petitioner denied being the shooter, rather than denying that he was involved at all in the crime. When Peixoto said he thought he was the shooter, petitioner said that was "no[t] how it went down," which arguably suggested he had greater knowledge about how the incident unfolded than he had claimed on the witness stand.
The credibility of petitioner's testimony about his close friendship with Okeigwe may have been further undermined by his apparent failure to show emotion when he was asked on the witness stand how he felt when he learned Okeigwe was dead. The prosecutor referred to petitioner's demeanor in this specific context during cross-examination and closing statement, and defense counsel elicited testimony from petitioner about desensitization and revived the theme in closing. Petitioner admitted that he did not call Okeigwe or his family to express his condolences from the time of the killings to the time of trial. In stark contrast, he apparently maintained a friendly relationship with Rauls, someone he initially characterized as his marijuana supplier, but not really a friend. In closing argument, the prosecutor argued that based on the pattern of phone calls between petitioner and Okeigwe that there had been a falling out of some sort between the men in the month before the killings. On the day before the killings, petitioner repeatedly called Okeigwe. The prosecutor argued that this suggested an urgent need to contact him, possibly to carry out a preconceived plan to bring him to Triangle Court on the evening of June 16, 2003 (id. at 24).
Petitioner attempted to explain his behavior at and after the killings by asserting that he was desensitized by the violence in the community where he lived and was raised, and that certain rules of the street, such as the prohibition against snitching, were embedded in him. The California Court of Appeal rejected this argument finding that the jury was free to draw different inferences from that testimony. The harshness of petitioner's life, his involvement in drug dealing, and his access to weapons might have persuaded the jury that it was plausible that this 18-year old, who was not impeached with any adult criminal record, was nevertheless capable of cold-blooded murder for rather pedestrian goals, such as protecting the business operations of himself and his supplier, or to prevent the robbery of a relative (id. at 25).
Petitioner contends that there were reasonable innocent explanations for his conduct which support his defense. The jury, however, had the opportunity to observe his demeanor on the witness stand and take those observations into account when it weighed the evidence. By judging whether and when petitioner was telling the truth, in whole or in part, during his lengthy testimony, the jury could have been persuaded that the reasonable interpretations of certain circumstantial evidence were inculpatory, rather than exculpatory. Some of petitioner's responses to cross-examination, for example, were substantive explanations of his actions, whereas others were categorical denials or implausible explanations. The jury could reasonably have chosen to reject, for example, petitioner's testimony that he made none of the statements Peixoto attributed to him, and his testimony that he could not remember the identity of the first person he called a mere 20 minutes after he fled from the scene of the killings, and whom he had repeatedly called shortly before the murders.
In short, after carefully reviewing the entire record and drawing all reasonable inferences (including credibility determinations) in favor of the jury's verdict, this order holds that a rational trier of fact could have found proof of guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). A rational jury could reasonably conclude from the evidence presented at trial that Wilson aided and abetted the double homicide. Accordingly, petitioner's challenge to the sufficiency of the evidence of his conviction on a theory of aiding and abetting is
Petitioner's tenth claim for relief is that his identification in a photo lineup was not supported by sufficient evidence (Petition 51, Traverse 2-11). Petitioner argues that the identification by victim Babcock "was based solely on confabulation, and tainted by improperly suggestive photo ID procedure" (Petition 51). Petitioner argues that the photo lineup was improper because petitioner's head stood out because it was larger than the other heads and was the "only one that is tilted to one side" (id. at 52). In addition, petitioner advances the theory that Babcock may have been suffering from confabulation, a condition in which gaps in one's own memory are implanted with information by others following a traumatic event. People v. Alcala, 36 Cal.3d 604, 620 (1984), superseded by state statute.
Before trial, the trial court denied a motion to exclude Babcock's identification:
(RT, Exh. B at 334).
Furthermore, the jury's determination of Babcock's credibility was also reasonable. Whether Babcock's identification was accurate or a product of confabulation goes to the accuracy of her identification and is a matter for the jury. Petitioner has the burden to show that the identification evidence violated due process because it "is so extremely unfair that its admission violates fundamental conceptions of justice." Dowling v. United States, 493 U.S. 342, 252 (1990). "Due process concerns arise only when law enforcement officers use an identification procedure that is both suggestive and unnecessary." Perry v. New Hampshire, 132 S.Ct. 716, 723 (2012).
Here, the sequence of events do not point to a violation of due process nor objective unreasonableness by the jury. On June 18, 2003, while Babcock was in the hospital following the shooting, she was visited by Detective Peixoto. Babcock was intubated, and communicated by blinking (RT, Exh. B at 1296-99). Detective Peixoto did not show Babcock any photos during this visit. Rather, he asked Babcock whether she knew who had shot her. She indicated yes (id. at 1305). When Detective Peixoto inquired whether she knew the shooter's name, Babcock answered in the affirmative (ibid.). When Peixoto asked whether the shooter had been in the car with Babcock and the two other victims before he started shooting, she again indicated yes (id. at 1306). Detective Peixoto then asked whether the shooter was a male and an African American. Babcock indicated yes to both (id. at 1307-08). When asked, Babcock indicated that she knew the name of the shooter and that it wasn't "Bone." When asked if the shooter's name was "Kimiko," Babcock indicated that it was (id. at 1312). Babcock also indicated that the shooter lived in North Richmond, and that she knew the street that the shooter lived on (id. at 1313, 1317).
The state court's conclusion that Babcock's identification of petitioner was admissible and the jury's determination of Babcock's credibility was reasonable. See 28 U.S.C. § 2254(d); Williams, 529 U.S. at 409; see also Coleman, 132 S. Ct. at 2065 (reviewing court may not substitute its judgment for that of the jury). Petitioner's request for federal habeas relief on his second claim of insufficiency of the evidence is
In his third and eighth claims, petitioner contends that the grand jury indictment did not give him adequate notice of the charges he faced (Petition 31, 40, Traverse 16-20). The California Court of Appeal rejected the claims as both procedurally barred, as well as meritless:
(Dkt. No. 12-1 at 26-28).
The California Court of Appeal held that petitioner's claim is both procedurally barred, as well as lacking in merit.
"A federal habeas court will not review a claim rejected by a state court if the decision of [the state] court rests on a state law ground that is independent of the federal question and adequate to support the judgment. The state-law ground may be a substantive rule dispositive of the case, or a procedural barrier to adjudication of the claim on the merits." Walker v. Martin, 131 S.Ct. 1120, 1127 (2011) (internal citations omitted). Here, the state court found that petitioner waived his claim "by failing to object on this ground in the trial court and by failing to move to reopen his case after the court agreed to give the instruction" (Ans. Exh. D at 26). Federal courts have recognized that California's contemporaneous objection rule constitutes a valid procedural default in a variety of contexts similar to this one. See, e.g., Ylst v. Nunnemaker, 501 U.S. 797, 806 (1991) (failure to object to confession); Fairbank v. Ayers, 650 F.3d 1243, 1256 (9th Cir. 2011) (failure to object to evidence); Paulino v. Castro, 371 F.3d 1083, 1093 (9th Cir. 2004) (failure to object to jury instruction); Davis v. Woodford, 384 F.3d 628, 654 (9th Cir. 2004) (failure to object on constitutional grounds to evidence). Here, because the California Court of Appeal held that petitioner's claim was procedurally barred under state law, he must demonstrate cause and prejudice to obtain habeas relief under state law. Wainwright v. Sykes, 433 U.S. 72, 90-91 (1977). Petitioner has demonstrated neither. He offers no explanation for his failure to raise this issue in a timely fashion. Petitioner, therefore, has not established prejudice of a magnitude resulting in a fundamental "miscarriage of justice." Schlup v. Delo, 513 U.S. 298, 316 (1995).
In his traverse, petitioner argues that there is a state law exception to the contemporaneous objection rule "where an objection would be futile." People v. Abbaszadeh, 106 Cal.App.4th 642, 648 (2003). In Abbaszadeh, state court of appeal held that the contemporaneous objection rule did not apply for three reasons: "(1) an objection would have been futile; (2) the People are at least equally at fault in allowing the error; and (3) we retain discretion to excuse the lack of an objection and elect to exercise that discretion in defendant's favor because of the shocking nature of the error which rendered the trial unfair." Ibid. Here, none of these reasons existed. First, petitioner cannot show that an objection to the aiding and abetting instructions would have been futile because he never gave the trial court an opportunity to rule on it. Nor does petitioner present a situation like the one in Abbaszadeh where the trial judge repeatedly shot down similar objections. Second, the lack of objection by defense counsel is in no way the prosecution's fault. Third, the state courts never exercised their discretion to waive the contemporaneous objection rule. Accordingly, petitioner's objection is forfeit and procedurally barred from habeas review.
In addition to being procedurally barred, petitioner's claim lacks merit. Petitioner contends that he was not given adequate notice that he would be prosecuted under an alternative theory of aiding and abetting (Petition 31, 40). Petitioner cannot, however, point to clearly established federal law, as determined by the Supreme Court of the United States, that establishes that his constitutional rights were violated. 28 U.S.C. 2254(d)(1).
"[A]n indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." Hamling v. United States, 418 U.S. 87, 117-18 (1974). "An indictment must provide the essential facts necessary to apprise a defendant of the crime charged; it need not specify the theories or evidence upon which the government will rely to prove those facts." United States v. Cochrane, 985 F.2d 1027, 1031 (9th Cir. 1993).
Here, the indictment provided:
(CT, Exh. A at 401). California Penal Code Section 971 provides:
Our court of appeals has noted that the Supreme Court has clearly established a notice requirement for charges, yet has not clearly established a notice requirement for theories of liability for a given charge. See Gautt v. Lewis, 489 F.3d 993, 1004 (9th Cir. 2007). Indeed, petitioner cannot point to a Supreme Court decision that creates a notice requirement for the theories of liability.
Petitioner does cite one decision of our court of appeals where habeas relief was granted based on a defendant's lack of notice of a felony-murder theory. See Sheppard v. Rees, 909 F.2d 1234 (9th Cir. 1989). Decisions of our court of appeals are not binding for the purposes of habeas review. 28 U.S.C. § 2254(d). Furthermore, Sheppard is distinguishable in that "the statements in Sheppard about the adequacy of the notice are dicta," since the State in that decision conceded that the defendant was denied adequate notice of the felony murder theory and the Sheppard court was not constrained by the Antiterrorism and Effective Death Penalty Act of 1996. Murtishaw v. Woodford, 225 F.3d 926, 939 n.4, 953-54 (9th Cir. 2001). Therefore, this order holds that petitioner's constitutional rights were not violated and that proper notice of the aiding and abetting theory was given. Petitioner's late-notice claim is, thus,
Petitioner's second claim contends that he was denied his rights to due process and a fair trial when the trial court declined to give a unanimity instruction (Petition 30). This claim is without merit.
There is no constitutional requirement that "the jury reach agreement on the preliminary factual issues which underlie the verdict." McKoy v. North Carolina, 494 U.S. 433, 449 (1990). Distinguishing between the facts necessary to satisfy the required elements of the charged offense from those facts that show the means by which the elements are established, the Supreme Court has held that juror unanimity is not required with respect to the theory underlying the criminal charge. "[I]t has long been the general rule that when a single crime can be committed in various ways, jurors need not agree upon the mode of commission." Schad v. Arizona, 501 U.S. 624, 631-32 (1991).
Because the California Court of Appeal applied the appropriate constitutional standards, the denial of this claim was not an unreasonable application of clearly established Supreme Court authority.
Petitioner cites United States v. Ferris, 719 F.2d 1405 (9th Cir. 1983), for the proposition that "[i]n federal criminal prosecutions, where a unanimous verdict is required, the Courts of Appeal are in general agreement that [u]nanimity . . . means more than a conclusory agreement that the defendant has violated the statute in question; there is a requirement of substantial agreement as to the principal factual elements underlying a specific offense." Id. at 1407 (internal citations omitted) (emphasis added). Our court of appeals has explicitly held, however, that a specific unanimity instruction is not required to distinguish an aiding-and-abetting theory of liability from the underlying substantive crime. United States v. Garcia, 400 F.3d 816, 820 (9th Cir. 2005). Thus, petitioner was not entitled to a unanimity instruction regarding which theory of criminal liability triggered liability for the murders as a matter of federal due process. Accordingly, this claim is
In petitioner's fourth habeas claim, he argues that even though his trial counsel failed to object to the lack of notice of the aiding and abetting theory, the failure to adequately preserve a proper objection deprived petitioner of the effective assistance of counsel guaranteed by the Sixth Amendment (Petition 32).
To prevail on a claim of ineffective assistance of counsel, petitioner must show both that counsel's performance was deficient and that the deficient performance prejudiced petitioner's defense. Strickland v. Washington, 466 U.S. 668, 688 (1984). To prove deficient performance, petitioner must demonstrate that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Ibid. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Id. at 687-88.
The relevant inquiry is not what defense counsel could have done, but rather whether the choices made by defense counsel were reasonable. See Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998). Judicial scrutiny of counsel's performance must be highly deferential, and a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. See Strickland, 466 U.S. at 689; Wildman v. Johnson, 261 F.3d 832, 838 (9th Cir. 2001). The reasonableness of counsel's decisions must be measured against the prevailing legal norms at the time counsel represented the defendant. Wiggins v. Smith, 539 U.S. 510, 522-23 (2003). A difference of opinion as to trial tactics does not constitute denial of effective assistance, see United States v. Mayo, 646 F.2d 369, 375 (9th Cir. 1981), and tactical decisions are not ineffective assistance simply because in retrospect better tactics are known to have been available. See Bashor v. Risley, 730 F.2d 1228, 1241 (9th Cir. 1984).
To prove counsel's performance was prejudicial, petitioner must demonstrate a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. Petitioner must show that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Id. at 688. The test for prejudice is not outcome-determinative, i.e., defendant need not show that the deficient conduct more likely than not altered the outcome of the case; however, a simple showing that the defense was impaired is also not sufficient. Id. at 693.
The California Court of Appeal rejected this claim:
(Dkt. No. 12-1 at 26).
On the record, petitioner cannot demonstrate that the California Court of Appeal's denial of his ineffective assistance of counsel claim was unreasonable. Petitioner argues that there can be no tactical reason in allowing the prosecution to advance two theories of liability instead of one:
(Petition 32-33).
Petitioner's contention, however, overlooks the obvious tactical reason presented by the California Court of Appeal: that even the prosecutor had doubts about whether petitioner shot the victims. It is not the role of the district court on habeas review to second guess trial counsel, but rather to decide whether the choices made by trial counsel were reasonable. On the record it appears that counsel made a tactical decision that was reasonable, despite the fact that it did not pay off.
Nor does the record demonstrate that petitioner was prejudiced by his counsel's decision. As the California Court of Appeal mentioned, petitioner does not describe what additional evidence he would have submitted to rebut the aiding and abetting theory. Even if petitioner's counsel was found to be ineffective, petitioner has not demonstrated that a different trial tactic by counsel would have altered the result of the proceeding. Thus, petitioner's habeas claim for ineffective assistance of counsel must be
In his thirteenth claim, petitioner argues that his appellate counsel was ineffective because counsel failed to raise several meritorious claims on direct appeal (Petition 70). Specifically, petitioner argues that his appellate counsel should have raised the claims "[1] dealing with the constitutionality of the prosecutor misleading the defense and [2] Sheianna Babcock's misidentification of [p]etitioner" (ibid.). Petitioner argues that his appellate counsel's conduct fell below the level required by the Sixth Amendment to the United States Constitution.
Appellate counsel does not have a constitutional duty to raise every nonfrivolous issue requested by the petitioner. See Jones v. Barnes, 463 U.S. 745, 751-54 (1983). The weeding out of weaker issues is widely recognized as one of the hallmarks of effective appellate advocacy. See Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989). Appellate counsel therefore will frequently remain above an objective standard of competence and have caused his client no prejudice for the same reason — because he declined to raise a weak issue. Ibid.
Petitioner raises two claims of ineffective assistance of appellate counsel. First, petitioner argues that his appellate counsel was ineffective for failing to raise a claim on direct appeal that "the prosecutor misled[] the defense" and "ambush[ed]" petitioner with the aiding and abetting theory (Petition 64, 70). As discussed in Section J of this order, petitioner's claim that he was misled is not meritorious and therefore, appellate counsel cannot have been ineffective for not raising it. Petitioner does not show how the adjudication of his claim was "contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. 2254. Petitioner has presented no evidence that his trial counsel or appellate counsel perceived any prejudice in the prosecution raising the aiding and abetting theory. Furthermore, petitioner does not identify how he would have litigated the case differently had he known from the outset that the prosecutor would alternatively argue liability based on aiding and abetting. The aiding and abetting theory was a direct consequence of petitioner raising his own new theory on the eve of trial. The fact that appellate counsel did not raise this claim on appeal indicates that he believed the claim to be weak and perceived no prejudice in the prosecution's actions. Because there was no merit-worthy issue here for appellate counsel to raise, petitioner cannot show that appellate counsel's performance was objectively unreasonable. Finally, because the claim lacks merit, petitioner cannot show that he was prejudiced by his counsel's decision.
Second, petitioner argues that his appellate counsel was ineffective for failing to raise a claim regarding "Sheinna Babcock's misidentification of [p]etitioner" (Petition 70). Petitioner states that "[t]he most amateur and inexperienced criminal practitioner would have seen grounds to raise a claim on Sheinna Babcock's mis-identification of [p]etitioner, being that the entire case is largely based on Ms. Babcock's mis-identification of [p]etitioner" (id. 71). Again, petitioner has failed to identify a merit-worthy issue that appellate counsel failed to raise, nor does he demonstrate a reasonable probably that, but for appellate counsel's failure to raise the issue, petitioner would have prevailed on his appeal. Petitioner fails to state on what grounds his appellate counsel should have objected to Babcock's identification, but it is likely that he intends to raise the same issues as he did under his sufficiency of the evidence claim; that Ms. Babcock's identification suffered from "confabulation" and was "tainted by [an] improperly suggestive photo ID procedure" (Petition 51). For the reasons stated in Section B, petitioner has not identified a merit-worthy issue that appellate counsel was obliged to raise. Similarly, because this order has already rejected petitioner's misidentification arguments, petitioner cannot show that there was a reasonable probability he would have prevailed in his appeal. Accordingly, petitioner's ineffective assistance of appellate counsel arguments must be
Petitioner's fifth claim is that his due process rights were violated when the trial court allowed in evidence that he had been asked to move out of Darlene and Ivan Weaver's home when he turned eighteen for irresponsible behavior and because he had a "ghetto mentality" (Petition 33).
The California Court of Appeal rejected this claim:
(Dkt. No. 12-1 at 30-33).
District courts on habeas review do not review questions of state evidence law, but may only consider whether the petitioner's conviction violated a clearly established constitutional norm. Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991). Petitioner claims that he was denied his right to the fundamentally fair trial guaranteed by the due process clause. Therefore, this order must consider whether the admission of the evidence so fatally infected the proceedings as to render them fundamentally unfair. See Kealohapauole v. Shimoda, 800 F.2d 1463, 1465 (9th Cir. 1986), cert. denied, 479 U.S. 1068 (1987). A mere violation of state evidentiary rules is not a sufficient basis for granting habeas relief. Jammal, 926 F.2d at 919.
Admission of evidence that petitioner was asked to move out of Darlene and Ivan Weaver's home for bad behavior did not render the trial fundamentally unfair. The California Court of Appeal found that evidence of petitioner's relationship to the Weavers was relevant in a number of regards:
(Dkt. No. 12-1 at 33). This order agrees.
Petitioner has not met his burden in demonstrating that the evidence admitted against him so fatally infected the proceedings as to render them fundamentally unfair. Petitioner's relationship with the Weavers was a peripheral issue in the trial and the evidence to which petitioner objects is relevant and not particularly prejudicial. Accordingly, petitioner's evidence claim is
In his sixth claim, petitioner argues that the trial court erred by declining to answer a juror's question about whether it was ethical for defense counsel to allow defendant to testify that he was innocent if defendant had confessed to his attorney (Petition 34).
The California Court of Appeal had the following to say on this claim:
(Dkt. No. 12-1 at 34-35).
Petitioner claims that the trial court's refusal "to do anything in the face of the juror's question prejudicially jeopardized [his] right to a fair trial" (Petition 35).
Petitioner's claim fails, however, as it does not specify what it is that the trial court was constitutionally required to do in this situation nor does it identify "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." 28 U.S.C. 2254(d)(1).
"In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, `indifferent' jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process." Irvin v. Dowd, 366 U.S. 717, 722 (1961). No evidence exists that petitioner was deprived of that right. The juror's note did not evince bias on the part of the juror; nor did it suggest that the jury improperly discussed the case prior to its submission to them. The question from an individual juror about defense counsel's ethical duty did not suggest juror misconduct. The juror's inquiry was responsive to the court's invitation to submit questions, but the jurors were also told that submitted questions would not necessarily be answered, and that they should not speculate as to the reasons if they were not. The question did not indicate that the juror was unwilling or unable to follow the court's instructions, or that any basis for discharge of the juror would have been revealed if the inquiry suggested had taken place. Accordingly, petitioner's due process rights were not violated and this claim must be
Petitioner's seventh claim is that his due process rights were violated because he was prosecuted solely for exercising his right to remain silent "during the time of arrest and in doing so contravened informing the State of Marcus Rauls' guilt as the sole perpetrator of this crime" (Petition 36). "The fact that [p]etitioner exercised the right to remain silent, on the premise of the Code of Silence, and forced the Government to prove its case should not have warranted the prosecutor's retaliatory and vindictive actions toward [p]etitioner's advocacy of the `Thou shall not snitch' Code of Silence" (ibid.). According to petitioner, the prosecuting attorney ignored exculpatory evidence — such as the testimony of witnesses Deforrest Thompson and Jesus Ponce, who gave a description matching Marcus Rauls as the shooter — as well as the "late-added theory" that petitioner aided and abetted the shooting (id. at 36-37).
"To establish a prima facie case of prosecutorial vindictiveness, a defendant must show either direct evidence of actual vindictiveness or facts that warrant an appearance of such." United States v. Montoya, 45 F.3d 1286, 1299 (9th Cir. 1995). The burden then shifts to the prosecution to show that "independent reasons or intervening circumstances dispel the appearance of vindictiveness and justify its decisions." Ibid. (internal citations omitted). "In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion." Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978).
Here, petitioner has failed to present any direct evidence of vindictive prosecution nor facts that warrant an appearance of such. Ample evidence exists in the records that both the prosecution and the jury's conviction were based on petitioner's guilt, rather than vindictiveness. Petitioner's claim that his prosecution was a result of his choice not to identify Marcus Rauls as the real killer is not persuasive, particularly considering the fact that petitioner did eventually implicate Marcus Rauls on the eve of trial.
Petitioner claims, in the alternative, that the "exculpatory evidence in support of [his] innocence is so strong" that the prosecutor's "continual pursuit of [his] conviction, in itself was an action of retaliation" for petitioner's exercising his right to remain silent (Petition 38). Again, petitioner's contention is meritless. Petitioner does not specify the "overwhelming" evidence of his innocence, but a review of the record finds little merit to this contention. The jury had ample support for unanimously finding petitioner guilty. At a minimum, the state court acted reasonably in concluding that petitioner had not established a prima facie claim of vindictive prosecution. Accordingly, petitioner's due process rights were not violated and this claim for vindictive prosecution must be
Petitioner's ninth claim contends that the prosecutor committed misconduct by "deliberate[ly] misleading" petitioner and eventually "ambushing" him with the aiding and abetting theory. Petitioner states:
(Petition 46).
Where a petitioner on federal habeas corpus review alleges prosecutorial misconduct, the issue to be decided is whether the conduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process" Darden v. Wainright, 477 U.S. 168, 181 (1986) (internal citations omitted).
Petitioner fails to identify any Supreme Court precedent finding misconduct under circumstances even remotely similar to those here. Instead, petitioner states that "the misleading in the present case is very much akin to that in Mooney v. Holohan," 294 U.S. 103 (1935).
In Mooney, petitioner challenged his confinement by the state where the "sole basis for his conviction was perjured testimony, which was knowingly used by the prosecuting authorities in order to obtain [a] conviction, and that authorities deliberately suppressed evidence which would have impeached and refuted the testimony thus given against him." Id. at 110. The Mooney decision, however, is not on point.
Here, petitioner does not allege that the prosecutor withheld evidence, inappropriately examined a witness, made inappropriate comments or argument to the jury, or otherwise violated a court order or instruction. Instead, the sole contention is that the prosecutor requested an aiding and abetting jury instruction in response to petitioner's story that he knew the real shooter, which was first revealed to the prosecution at trial. The Supreme Court has never suggested that habeas relief could lie under such circumstances. 28 U.S.C. 2254(d)(1).
As for petitioner's argument that he was "ambush[ed]," it too lacks merit. Petitioner admits that he was represented by "a well-known and experienced criminal practitioner" (Petition 41). Such a practitioner would likely have been aware that when petitioner changed his story to include Marcus Rauls on the eve of trial, petitioner of course could be held liable as either an aider and abettor or the direct perpetrator. Indeed, defense counsel did not object to the inclusion of the jury instruction, and in fact used its inclusion to argue that the prosecution was unsure of its own case. Such an argument indicates that defense counsel perceived no prejudice to his defense.
Furthermore, as the California Court of Appeal recognized, petitioner has never explained how he would have litigated the case differently had he known from the outset that the prosecutor would alternatively argue liability based on aiding and abetting. Accordingly, it was reasonable for the state court to conclude that the prosecutor did not commit misconduct by requesting an aiding and abetting instruction in response to petitioner's testimony. Petitioner's claim is
In his eleventh claim, petitioner argues that the trial judge, Mary Ann O'Malley, should have recused herself due to the political and personal ties she shared with the Contra Costa County prosecutor, Harold Jewett (Petition 61). Petitioner claims that Jewett physically assaulted his own supervisor, Paul Sequiera, for reasons related to Paul Sequiera's opposition to Judge O'Malley's husband's candidacy for District Attorney of Contra Costa County in 2010. Further, petitioner cryptically states that "[t]here is a very strong inference that Judge Mary Ann O'Malley's findings in [p]etitioner's trial were motivated by her and her husband's friendship with and political ties with Harold Jewett . . . The assurance of Kimikio Kimio Wilson's conviction was used as barter by Judge Mary Ann O'Malley to gain the political alliance of prosecuting attorney Harold Jewett" (Petition 61-62).
The due process clause entitles petitioner the right to a fair and impartial judge. In re Murchison, 349 U.S. 133, 136 (1955). To overturn a conviction based on judicial bias, a petitioner must "overcome a presumption of honesty and integrity" on the part of the judge. Withrow v. Larkin, 421 U.S. 35, 47 (1975). The Supreme Court has found three circumstances where an appearance of bias necessitates recusal. First, where the judge has a direct financial interest in the outcome. Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 822-24 (1986). Second, where the judge is faced with substantial direct personal insults from a litigant. Mayberry v. Pennsylvania, 400 U.S. 455, 466 (1971). Third, where the judge acted as part of the prosecution. In re Murchison, 349 U.S. at 134-36.
The prosecution in its response to the habeas petition argues that there is no indication of judicial bias and that "[i]t was Paul Sequeria, not [Harold] Jewett, who support [Judge O'Malley's husband]" in the election (Ans. 49). If true, petitioner's claim would be nonsensical. Regardless, petitioner has failed to present a prima facie case of judicial bias; his claim therefore, is
Petitioner's twelfth claim for relief alleges that the grand jury panel contained a biased juror. The juror in question "was an employee of the Richmond Police Department . . . [and] personally knew Det[ective] Piexoto, the lead investigator of the crime and key police witness, and likely knew other police witnesses as well" (Petition 65).
Before the grand jury proceedings commenced, the following exchange occurred between the prosecutor and the grand jury member:
(CT, Exh. A at 27-28).
Based on the above exchange, petitioner claims that grand juror DeLuz had an implied bias against him. The claim for implied bias, however, is not meritorious. As our court of appeals has recognized, "the Supreme Court has not explicitly adopted (or rejected) the doctrine of implied bias." Fields v. Brown, 503 F.3d 755, 768 (9th Cir. 2007) (en banc).
Similarly, "the Supreme Court has never held that a juror was impliedly biased in the absence of juror dishonesty." Id. at 771. Here, plaintiff does not allege that DeLuz was dishonest, but merely that her job made her unqualified to serve on his grand jury. Petitioner cannot point to any "clearly established Federal law, as determined by the Supreme Court of the United States" that stands for this proposition. 28 U.S.C. 2254(d)(1). Therefore, his claim is
Although not controlling on habeas review, our court of appeals has acknowledged that bias may be implied when the juror's situation presents a relationship in which the "potential for substantial emotional involvement, adversely affecting impartiality," is inherent. Tinsley v. Borg, 895 F.2d 520, 527 (9th Cir. 1990), or as the Fourth Circuit has put it, "those extreme situations where the relationship between a prospective juror and some aspect of the litigation is such that it is highly unlikely that the average person could remain impartial in his deliberations under the circumstances." Person v. Miller, 854 F.2d 656, 664 (4th Cir. 1988). Here, petitioner has not presented an "extreme situation" in which the average person could not remain impartial. At a minimum, the state court was reasonable in concluding that there was that there was no implied bias. Thus, petitioner's claim of grand jury bias is
The petition for a writ of habeas corpus is