YVONNE GONZALEZ ROGERS, UNITED STATES DISTRICT COURT JUDGE.
This matter is now before the Court for consideration of Raymond Timothy Frank's ("Petitioner") pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging his 2003 conviction in Contra Costa County Superior Court. For the reasons set forth below, the petition is DENIED. In addition, no certificate of appealability will be issued. The motions for judicial notice and for to "revive" Claims 1-7 are DENIED.
On October 15, 2003, Petitioner was convicted by a Contra Costa County jury of two counts of corporal injury of a child (Cal. Penal Code § 273d(a)) and one count of assault causing the death of a child under the age of eight (Cal. Penal Code § 273ab), with one "strike" and a prior serious felony conviction. (Clerk's Transcript ("CT") Vol. 2, Ans. Exh. A, at 492-93.) He was sentenced to a term of sixty years and four months to life in prison. (Id. at 606-11.) The judgment was affirmed by the California Court of Appeal on May 10, 2007. (Ans.Exh. G.) The California Supreme Court denied review on July 18, 2007. (Id.)
On October 20, 2008, Petitioner filed a petition for a writ of habeas corpus in the Contra Costa County Superior Court. (Docket No. 14, Exh. C.) The court issued a reasoned opinion denying the petition on December 16, 2008. (Id., Exh. C at 1-4.) Thereafter, Petitioner filed state habeas petitions in the California Court of Appeal and the California Supreme Court, both of which were denied. (Id., Exhs. D, E.)
Petitioner filed his first federal habeas petition on October 14, 2008. (Case No. C 08-04835 MMC (PR), Docket No. 1.) The petition was dismissed without prejudice on December 4, 2008, because Petitioner failed to pay the filing fee. (Id., Docket No. 5.) The Court subsequently declined to reopen the action because the claims presented in the petition appeared to be unexhausted. (Id., Docket No. 8.)
On October 14, 2011, Petitioner filed the instant federal petition for a writ of habeas corpus. (Docket No. 1.) Respondent moved to dismiss the petition as untimely and procedurally barred. After full briefing by the parties, the Court issued an order finding that the petition "is barred as untimely under 28 U.S.C. § 2244(d)(1), unless [Petitioner] can show that he is entitled to equitable tolling of the limitations period." (Docket No. 13.) Petitioner argued in his opposition to the motion to dismiss that he was entitled to equitable tolling, but the Court found that Respondent
Respondent filed a renewed motion to dismiss, arguing Claims 1-7 of the petition are procedurally barred, but not renewing the argument that the petition is untimely or addressing the matter of equitable tolling. (Docket No. 14.) The Court granted the motion and dismissed Claims 1-7 as procedurally barred, in the process denying Petitioner's argument that the procedural bar should be excused on the basis of "actual innocence." (Docket No. 19.) The Court also ordered Respondent to file an answer and to show cause why the petition should not be granted on the basis of claims 8-11. (Id.)
Respondent filed an Answer with a supporting memorandum and exhibits. Petitioner filed a Traverse. Petitioner then filed a renewed motion for leave to file an amicus curiae brief, and to "revive" Claims 1-7 on the basis of "actual innocence." Petitioner also filed a motion for judicial notice.
The California Court of Appeal described the relevant facts as follows, referring to Petitioner as "appellant":
People v.Frank, 2007 WL 1366490, *1-2 (Cal.Ct.App.2007) (see also Ans. Exh. G) (footnotes in original)).
This Court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of
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, Williams v. Taylor, 529 U.S. 362, 384-86, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), while the second prong applies to decisions based on factual determinations. Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).
A state court decision is "contrary to" clearly established Supreme Court precedent if it "applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases," or if it "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [its] precedent." Williams, 529 U.S. at 405-06, 120 S.Ct. 1495. "Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct 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, 120 S.Ct. 1495. Section 2254(d)(1) restricts the source of clearly established law to the Supreme Court's jurisprudence. Mitchell v. Esparza, 540 U.S. 12, 17, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003).
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." Miller-El, 537 U.S. at 340, 123 S.Ct. 1029. Where constitutional error is found, habeas relief is warranted only if the error at issue had a "substantial and injurious effect on the verdict." Penry v. Johnson, 532 U.S. 782, 796, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001) (citation omitted).
In determining whether the state court's decision is contrary to or involved an unreasonable application of clearly established federal law, or is based on an unreasonable determination of the facts, a federal court looks to the decision of the highest state court to address the merits of a petitioner's claims in a reasoned decision. LaJoie v. Thompson, 217 F.3d 663, 669 n. 7 (9th Cir.2000). The four remaining claims, Claims 8-11, were raised and denied on direct appeal. The California Court of Appeal's opinion affirming the judgment is the highest reasoned state court decision denying the claims because the California Supreme Court denied them summarily.
The four remaining claims, Claims 8-11, assert: (1) the trial court violated his right to due process by admitting evidence of his objections to a police search of his home; (2) the trial court should have given a unanimity instruction on Count One, for assault causing death; (3) the discharge of Juror No. 6 violated his state constitutional right to a unanimous jury verdict, in
Petitioner claims that the trial court violated his constitutional rights by admitting evidence that he objected to the police searching his home as evidence of his consciousness of guilt. Petitioner's girlfriend Meiers consented to a search of the family home on the night Michael was injured, while Petitioner was at the hospital. When Petitioner came home, he objected to the search and the presence of police officers in his home. At trial, the court allowed the officers to testify to Petitioner's objections. Petitioner argues that the trial court should not have admitted the evidence because he was asserting his constitutional rights. Allowing the evidence to show his consciousness of his guilt violates both his Fourth Amendment rights and his due process right to a fundamentally fair trial.
The California Court of Appeal agreed that admission of the evidence was error but found the error harmless. See People v.Frank, 2007 WL 1366490 at *3-5. In finding error, the California Court of Appeal relied on state court precedent. Id. at *3. Under AEDPA, federal habeas relief is only available on the basis of "clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d); see Mitchell v. Esparza, 540 U.S. 12, 17, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003) (Section 2254(d)(1) restricts the source of clearly established law to the Supreme Court's jurisprudence). "Circuit precedent does not constitute `clearly established Federal law, as determined by the Supreme Court,' 28 U.S.C. § 2254(d)(1)" and it "therefore cannot form the basis for habeas relief under AEDPA." Parker v. Matthews, ___ U.S. ___, 132 S.Ct. 2148, 2155, 183 L.Ed.2d 32 (2012).
None of the authority relied upon by the Court of Appeal to find error, nor any authority cited by Petitioner, comes from the United States Supreme Court. While the Supreme Court has held that a defendant's exercise of his Fifth Amendment right to remain silent may not be admitted to show evidence of guilt, Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), and certain federal courts of appeal have extended that holding to a defendant's assertion of his Fourth Amendment rights, see, e.g., United States v. Taxe, 540 F.2d 961, 969 (9th Cir.1976), Petitioner cites no decisions of the Supreme Court, and this Court is aware of none, that have extended Griffin to the Fourth Amendment. Therefore, the admission of the evidence of Petitioner's objections to the search does not contravene "clearly established Federal law as determined by the Supreme Court," and under AEDPA this claim does not warrant habeas relief.
Federal habeas relief is not warranted for a second reason: even if the trial court erred in admitting the evidence, there was no prejudice. When an evidentiary error is of constitutional dimension, federal habeas relief is only allowed if the error was not harmless under the standard of Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).
People v.Frank, 2007 WL 1366490 at *4-5.
The California applied the harmlessness standard for direct review from Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), under which it is more difficult to find harmlessness than under the harmless error standard used on federal habeas review. See Brecht, 507 U.S. at 637-38, 113 S.Ct. 1710. For the same reasons that the California Court of Appeal found the error harmless under Chapman, namely the persuasive forensic evidence and the other evidence of Petitioner's consciousness of guilt, this Court finds that even if admitting his objections to the search were erroneous under AEDPA, the error would be harmless under Brecht because the evidence did not have a substantial and injurious effect on the jury's verdict. Accordingly, habeas relief must be denied on this claim.
Petitioner claims that the trial court erred in failing to give a unanimity instruction on Count One, the charge for assault leading to the death of a child under California Penal Code § 273ab. Petitioner alleges no constitutional violation, but the claim is liberally construed to assert a violation of his right to due process. See generally Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir.1988) (state trial court's failure or refusal to give instruction may deprive defendant of fair trial guaranteed by due process).
The jury was instructed, pursuant to CALJIC No. 17.01, that there was evidence of more than one act upon which a conviction on the two counts of abusing his children could be based, and that "all jurors must agree" on the act or acts that Petitioner had committed. Petitioner argues that such an instruction should also have been given on Count One because there was evidence that Petitioner had shaken or assaulted Michael more than once and the jury had to be told that it needed to agree on which assault occurred.
The California Court of Appeal found no error, based upon the following reasoning:
People v. Frank, 2007 WL 1366490 at *6-7 (footnotes in original).
The California Court of Appeal's interpretation of Section 273ab that it requires a funding that that the use of force actually caused the death of the child is an interpretation of state law that is binding on this Court conducting federal habeas review. Hicks v. Feiock, 485 U.S. 624, 629-30 n. 3, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988). The Court of Appeal reasonably found that the evidence showed that Michael's death was caused by an assault that occurred immediately prior to his hospitalization, either because it was sufficient on its own to kill him or as cumulative of earlier assaults. In either case, there were not multiple different acts that could have been the basis for the conviction under Section 273ab under the California Court of Appeal's binding construction of California law, and therefore there was no need for a unanimity instruction. The California Court of Appeal's denial of this claim was therefore neither contrary to nor an unreasonable application of federal law.
Petitioner claims that the discharge of Juror No. 6 for cause during deliberations violated his right to a unanimous jury verdict under the California constitution, a right constitutes a liberty interest protected by the federal constitutional right to due process. He correctly concedes that there is no federal constitutional right, either under the Sixth Amendment right to a jury or the due process right to a fundamentally fair trial, to a unanimous verdict for defendants in state courts. See Apodaca v. Oregon, 406 U.S. 404, 410-12, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972) (rejecting 6th Amendment right to jury trial challenge to 10-2 state jury verdict); Johnson v. Louisiana, 406 U.S. 356, 359-63, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972) (rejecting due process challenge to 9-3 state jury verdict).
Petitioner cites no Supreme Court authority, or indeed any decisions by the federal circuit courts, and this Court is aware of none, that a defendant has a liberty interest protected by the federal right to due process in a unanimous verdict. The absence of such authority means that the state courts' rejection of his claim cannot be contrary to or an unreasonable application of "clearly established federal law, as determined by the Supreme Court," and that he cannot obtain habeas relief under AEDPA.
Even if Petitioner had a liberty interest protected by due process in the state constitutional right to a unanimous jury verdict, moreover, the record does not support a finding that this right was violated. As framed by the California Court of Appeal, California's right to a unanimous verdict is not violated if Juror No. 6 was discharged because of a "demonstrable reality" of good cause, and not because she doubted the sufficiency of the prosecution's evidence that petitioner was guilty. People
People v. Frank, 2007 WL 13662490 at *8. Even if Petitioner had a federally-protected liberty interest in his state constitutional right to a unanimous verdict, the state courts' reasonable conclusion that the record does not show a violation of this right precludes federal habeas relief on this claim.
Petitioner claims that his sentence of twenty-five-years-to-life for assaulting his child and causing his death under California Penal Code § 273ab is cruel and unusual punishment prohibited by the Eighth Amendment. For the purposes of AEDPA, it is clearly established that "[a] gross proportionality principle is applicable to sentences for terms of years." Lockyer v. Andrade, 538 U.S. 63, 72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). "The Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are `grossly disproportionate' to the crime." Ewing v. California, 538 U.S. 11, 24-25, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003). "[I]n applying gross disproportionality principle courts must objectively measure the severity of a defendant's sentence in light of the crimes he committed." Norris v. Morgan, 622 F.3d 1276, 1287 (9th Cir.2010). The court "considers all of the circumstances of the case to determine whether the sentence is unconstitutionally excessive." Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 2021, 176 L.Ed.2d 825 (2010).
The California Court of Appeal denied this claim based on the following reasoning:
People v. Frank, 2007 WL 1366490 at *9.
The United States Supreme Court has held that a sentence of fifty years to life for a conviction for two petty thefts where the offender had three prior burglary convictions was not an unreasonable application of the gross disproportionality principle. Lockyer, 538 U.S. at 73-74, 123 S.Ct. 1166. The Supreme Court has also upheld a sentence of twenty-five years to life for felony grand theft of three golf clubs, with three prior convictions for burglary and robbery. Ewing, 538 U.S. at 29-30, 123 S.Ct. 1179. The sentences in Lockyer and Ewing were as long or longer than the twenty-five-years-to-life sentence for violating Section 273ab, and yet the offenses were non-violent property crimes that are much less serious than the crime of assaulting and killing an 11-month old baby. In addition, Petitioner's prior conviction for assault with intent to commit rape is more serious and violent than the non-violent prior convictions of the defendants in Lockyer and Ewing. If the similar and longer sentences in Lockyer and Ewing are not grossly disproportionate to the less serious offenses, and do not violate the Eighth Amendment, then the state court's decision here to uphold Petitioner's sentence was neither contrary to nor an unreasonable application of federal law. Accordingly, habeas relief is not warranted on this claim.
After filing his Traverse, Petitioner filed two motions: one for judicial notice and one to "revive" Claims 1-7, which were dismissed on procedural default grounds.
Petitioner requests judicial notice of two documents: (1) a declaration by Dr. John Plunkett offering his opinion that Michael did not die as a result of "Shaken Baby Syndrome" (Dkt. No. 33, Exh. G); and (2) a document entitled "Brief of Amicus Curiae of Physicians and Bio-Scientists On Behalf of Petitioner Raymond Frank" (Dkt. No. 2). These are not judicially noticeable documents. A judge may take judicial notice of facts not subject to reasonable dispute and either generally known in the community of capable of accurate and ready determination by reference to sources whose accuracy cannot be reasonably questioned. See Fed. R. Evid. 201; Lee v. City of Los Angeles, 250 F.3d 668, 688-90 (9th Cir.1002). The documents are not "facts," and the opinions, scientific research, facts and arguments set forth therein are highly disputed and are far from generally known or capable of accurate and ready determination. (See Dkt. No. 19.) Accordingly, the request for judicial notice (Dkt. No. 32) will not be granted. It appears, however, that Petitioner may be confusing judicial notice with judicial consideration. While the Court cannot take judicial notice of the matters discussed in the documents, the Court can and has considered these documents in deciding his other motion, to restore the dismissed Claims 1-7.
The amicus brief along with his petition; the brief was prepared and filed by attorney Lisa A. Rasmussen in a different criminal proceeding over a decade ago. (Dkt. No. 2.) In connection with Respondent's first motion to dismiss, Rasmussen confirmed to Respondent's attorney that she was not representing Petitioner, nor had she filed an amicus brief in the instant case or "authorized or endorsed such use" of her amicus brief, but rather had filed it in approximately 2000 in People v. Basuta, 94 Cal.App.4th 370, 114 Cal.Rptr.2d 285 (2001), a direct appeal involving "shaken baby syndrome." (Reply to MTD (Dkt. No. 12), Exh. 1, Decl. Gregory Ott ("Ott Decl.") ¶¶ 3-6.) The Court rejected consideration of the amicus brief because it was prepared for an unrelated case. (Dkt. No. 13.) In his opposition to Respondent's renewed motion to dismiss, Petitioner renewed both his claim of actual innocence and his motion for leave to file Rasmussen's amicus brief in support of that claim, this time submitting evidence that Rasmussen's permitted him to use the brief. The Court reviewed the amicus brief and the parties' arguments, and rejected Petitioner's assertion of actual innocence for two reasons. First, the arguments made in the amicus brief refuting the science behind "shaken baby syndrome" were not addressed to the evidence in Petitioner's case. Secondly, Petitioner had not presented evidence (such as affidavits) from potential expert witnesses who reviewed
Petitioner now submits the declaration of Dr. John Plunkett, a physician licensed in Minnesota and Wisconsin, stating that he reviewed the photos of Petitioner's children in 2005, and that in his opinion John and Jane had been struck with a belt, and that Michael did not die from "shaken baby syndrome." (Dkt. No. 33, Exh. G, Decl. John Plunkett ¶¶ 1-5.) Dr. Plunkett further opines that the principles in Rasmussen's amicus brief apply to Petitioner's case. (Id. ¶¶ 6-8.) This does not meet the standard of actual innocence. Had Dr. Plunkett's opinions, including his endorsement of the principles in Rasmussen's brief, been presented at trial, the jury would have been presented with dueling expert opinions between Dr. Plunkett and the principles cited in the amicus brief on the one hand, and on the other hand the opinions of the pathologist, Michael's treating physicians and the prosecution's experts that Michael's death was caused by shaken baby syndrome or blunt force head injury. A reasonable juror could certainly find persuasive the opinions of the pathologist, treating physicians, and prosecution's expert persuasive, reject the contrary opinions of Dr. Plunkett and the amicus brief, and find beyond a reasonable doubt that Petitioner assaulted Michael and caused his death. In addition, this was not solely a shaken baby case: Michael's body showed ample external trauma and his treating physicians and the prosecution's expert's opinions allowed that his head injuries were caused by shaking or other nonaccidental and abusive trauma. (See RT at 1101, 1108, 1111, 1183-84, 1197, 1222, 1225, 1506, 1664.) Therefore, even if the new evidence persuaded the jury that Michael did not die from shaking, a reasonable juror could have still found beyond a reasonable doubt that Michael died from other trauma and abuse inflicted by Petitioner.
As a result, Dr. Plunkett's declaration and the amicus brief do not meet the high burden of showing that, had this evidence been presented at trial, "it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." Schlup, 513 U.S. at 327, 115 S.Ct. 851. Consequently, the Court finds that even considering Dr. Plunkett's declaration and the miscarriage of justice exception on the grounds of actual innocence does not apply to Petitioner's procedural default of Claims 1-7 of the instant petition. Accordingly, the motion to "revive" such claims will also be denied.
For the foregoing reasons, the Court DENIES the petition for a writ of habeas corpus, and the motions for judicial notice and to "revive" Claims 1-7 are DENIED. A certificate of appealability will not issue. Reasonable jurists would not find the Court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Petitioner may seek a certificate of appealability from the Court of Appeals.
The Clerk shall enter judgment in favor of Respondent and close the file.
IT IS SO ORDERED.
Pursuant to the Order denying the petition for a writ of habeas corpus, judgment is entered in favor of Respondent and against Petitioner.
IT IS SO ORDERED.
