LUCY H. KOH, UNITED STATES DISTRICT COURT JUDGE.
Respondent filed a motion for summary judgment with respect to all 37 claims contained in Petitioner's amended petition for a writ of habeas corpus. Petitioner opposes Respondent's motion and requests an evidentiary hearing on 15 claims. This Order addresses Petitioner's claims 1 through 6, which pertain to severance and jury selection issues. For the reasons discussed below, Respondent's motion with respect to claims 1 through 5 is GRANTED, and ruling on claim 6 is deferred. The remainder of Petitioner's claims shall be addressed in subsequent Orders.
The following recitation of the factual background of this case is based on the California Supreme Court's opinion on Petitioner's direct appeal. People v. Ervin, 22 Cal.4th 48, 91 Cal.Rptr.2d 623, 990 P.2d 506 (2000). The state court's factual determinations are presumed to be correct pursuant to 28 U.S.C § 2254(e)(1).
Petitioner was convicted in the Superior Court of Alameda County of first degree murder with the special circumstance finding of murder for financial gain for the November 7, 1986 killing of Carlene McDonald. Evidence at Petitioner's trial established that Robert McDonald, the victim's former husband, hired Petitioner and Arestes Robinson, to kill Carlene for $2,500.00. Petitioner's acquaintance, Armond Jack, drove Petitioner and Robinson to the victim's apartment in El Sobrante on the night of the murder. Petitioner and Robinson then abducted Carlene. Using Carlene's vehicle, Petitioner and Robinson took Carlene to Tilden Park and stabbed Carlene to death and left her body. The men were armed with a BB gun that looked like a .45 caliber pistol as well as the knife used to kill Carlene. A patrol officer found Carlene's body the next afternoon.
Petitioner and Robinson met with Robert McDonald the day after the murder. They presented Carlene's driver's license as proof of the killing. McDonald paid them $2,500.00, which Petitioner shared with Robinson and others to buy cocaine. McDonald paid Petitioner an additional $1,700.00 a couple of weeks after the murder. Sharon Williams, Petitioner's girlfriend, testified that Petitioner gave her a watch and a ring later identified as belonging to Carlene. Jack testified under a grant of immunity that he had driven with Petitioner to meet with McDonald to negotiate the price for killing Carlene. Jack was also present when Petitioner and Robinson searched for Carlene's car in a Bay Area Rapid Transit (BART) parking lot. According to Jack, while he, Petitioner and Robinson were driving to Carlene's apartment on the night of the murder, Petitioner asked for and received a knife from Robinson. The knife looked like the 13-inch kitchen knife the prosecutor showed Jack.
Ample physical evidence linked Petitioner to the crime, including his possession of
Additionally, Petitioner admitted various incriminating aspects of the crime to David Willis, Zane Sinnott, Gwyn Willis, and the investigating officer, Sergeant Dana Weaver. According to these witnesses, Petitioner admitted that he and Robinson confronted Carlene, pointed the BB gun at her, forced her into her car and drove her to Tilden Park, where Petitioner stabbed her to death while Robinson held her. The prosecutor also introduced the prior testimony of Robinson's girlfriend, Gail Johnson, who stated that Robinson admitted participating in the murder.
Robinson, McDonald and Petitioner were tried together. Petitioner made no claims of innocence, but sought to impeach or discredit the testimony of prosecution witnesses Jack, Sinnott and David Willis. Additionally, Dr. Fred Rosenthal, a psychiatrist, testified that cocaine consumption may have impaired Petitioner's thought processes.
During the penalty phase, the prosecution introduced evidence of Petitioner's prior bank robbery conviction and some minor jail disciplinary problems. The prosecutor also introduced evidence of uncharged assaults involving Robinson as perpetrator. Petitioner introduced mitigating evidence regarding his character, employment, family, drug use, religious involvement and musical skills. Codefendants McDonald and Robinson also introduced mitigating evidence.
The jury returned death verdicts for Petitioner and McDonald, but chose life imprisonment without parole for Robinson.
On January 6, 2000, the California Supreme Court affirmed Petitioner's conviction and sentence. Ervin, 22 Cal.4th at 66, 91 Cal.Rptr.2d 623, 990 P.2d 506. The United States Supreme Court denied his application for a writ of certiorari on October 2, 2000. Ervin v. California, 531 U.S. 842, 121 S.Ct. 107, 148 L.Ed.2d 65 (2000).
On November 12, 2002, Petitioner filed a petition for a writ of habeas corpus with this Court. (ECF Doc. No. 32) On January 22, 2003, Petitioner filed a substitute corrected petition for a writ of habeas corpus. (ECF Doc. No. 45) That same day, the Court stayed the federal habeas proceedings so that Petitioner could return to state court to exhaust claims. Petitioner filed a state habeas petition on October 1, 2003, and on December 14, 2005, the California Supreme Court denied that petition.
Respondent filed an answer on November 2, 2006. (ECF Doc. No. 70) On September 7, 2007, Petitioner filed an amended petition for a writ of habeas corpus raising thirty-seven claims. (ECF Doc. No. 97) On March 7, 2008, Respondent filed a response to the amended petition. (ECF Doc. No. 110) Petitioner filed a traverse on November 13, 2008. (ECF Doc. No. 133)
On May 29, 2009, petitioner filed a motion for discovery. (ECF Doc. No. 143) This motion was granted in part and denied in part on March 22, 2010. (ECF Doc. No. 161) Petitioner filed a request to depose a dying witness, as well as a supplemental motion for discovery on June 6, 2011. (ECF Doc. Nos. 178,179). On September 8, 2011, Petitioner's request to conduct a deposition was granted, and his supplemental discovery motion was granted in part and denied in part. (ECF Doc. No. 189)
Respondent filed a motion for summary judgment on February 14, 2012. (ECF
On January 8, 2013, Petitioner filed an opposition to respondent's motion for summary judgment and a request for an evidentiary hearing. (ECF Doc. No. 249) Respondent filed a reply on May 10, 2013. (ECF Doc. No. 259). Petitioner filed a reply to Respondent's opposition to Petitioner's request for an evidentiary hearing on August 16, 2013. (ECF Doc. No. 266) The case was transferred to the undersigned Judge on January 7, 2015. (ECF Doc. No. 268)
On March 16, 2015, the Court stayed Petitioner's penalty-phase claims pending the Ninth Circuit's resolution of an appeal filed in Jones v. Chappell, 31 F.Supp.3d 1050 (C.D.Cal. July 16, 2014). (ECF Doc. No. 269) The Ninth Circuit decided Jones on November 12, 2015, reversing the district court's grant of relief on a claim that California's post-conviction system of review violates the Eighth Amendment's prohibition against cruel and unusual punishment. Jones v. Davis, 806 F.3d 538 (9th Cir.2015). All of Petitioner's claims are now ripe for review.
Because Petitioner filed his original petition in 2002, well after AEDPA's effective date of April 24, 1996, the standards of AEDPA apply to this case. See Woodford v. Garceau, 538 U.S. 202, 206, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003). Pursuant to AEDPA, a district court may not grant a writ of habeas corpus with respect to any claim that was adjudicated 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). In determining whether a petitioner is entitled to relief under this provision, a federal court's review "is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 563 U.S. 170, 180, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011).
The "contrary to" and "unreasonable application" prongs of section 2254(d)(1) have separate and distinct meanings. See Williams v. Taylor, 529 U.S. 362, 404, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court's decision is "contrary to" clearly established U.S. Supreme Court law if that decision fails to apply the correct controlling authority or if it applies the controlling authority to a case involving facts materially indistinguishable from those in a controlling case, but nonetheless reaches a different result. Id. at 412-13, 120 S.Ct. 1495. A decision is an "unreasonable application" of U.S. Supreme Court law if "the state court identifies the correct governing legal principle ... but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413, 120 S.Ct. 1495. Importantly, "an unreasonable application of federal law is different from an incorrect application of federal law." Harrington v. Richter, 562 U.S. 86, 101, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (quoting Williams, 529 U.S. at 410, 120 S.Ct. 1495). A state court's determination that a claim lacks merit is not unreasonable "so long as `fairminded jurists could disagree' on [its] correctness." Id. (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)).
To find under section 2254(d)(2) that a state court's decision was based on "an unreasonable determination of the facts," a federal court "must be convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record before the state court." Hurles v. Ryan, 752 F.3d 768, 778 (9th Cir.2014) (internal quotation marks omitted), cert. denied, ___ U.S. ___, 135 S.Ct. 710, 190 L.Ed.2d 461 (2014). In other words, "a state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance." Burt v. Titlow, ___ U.S. ___, 134 S.Ct. 10, 15, 187 L.Ed.2d 348 (2013) (internal quotation marks omitted). That said, "where the state courts plainly misapprehend or misstate the record in making their findings, and the misapprehension goes to a material factual issue that is central to petitioner's claim, that misapprehension can fatally undermine the fact-finding process, rendering the resulting factual finding unreasonable." Taylor v. Maddox, 366 F.3d 992, 1001 (9th Cir.2004).
In the event that a federal court "determine[s], considering only the evidence before the state court, that the adjudication of a claim on the merits resulted in a decision contrary to or involving an unreasonable application of clearly established federal law, or that the state court's decision was based on an unreasonable determination of the facts," the federal court evaluates the petitioner's constitutional claim "de novo." Hurles, 752 F.3d at 778. If constitutional error is found, however, habeas relief is warranted only if that error "had substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Under this standard, petitioners "may obtain plenary review of their constitutional claims, but they are not entitled to habeas relief based on trial error unless they can establish that it resulted in `actual prejudice.'" Brecht, 507 U.S. at 637, 113 S.Ct. 1710 (quoting United States v. Lane, 474 U.S. 438, 449, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986)); accord Davis v. Ayala, ___ U.S. ___, 135 S.Ct. 2187, 2198, 192 L.Ed.2d 323 (2015).
Summary judgment is appropriate if, viewing the evidence and drawing all reasonable inferences in the light most favorable to the nonmoving party, there are no genuine disputes of material fact, and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 321, 106 S.Ct. 2548,
In claim 1, Petitioner asserts that the trial court deprived him of his constitutional rights by failing to order separate trials when conflicts arose during jury selection and trial. In June 1988, the prosecution moved to consolidate the case against Petitioner, Robinson and McDonald. Over Petitioner's objection, the counts against the three defendants were consolidated. Later, in February 2009, Petitioner moved to sever his case from those of his codefendants. His motion was denied. Petitioner contends that the joinder of the cases was prejudicial. He asserts that jurors qualified to judge Petitioner were eliminated due to their inability to return a death verdict for McDonald — because of his lack of physical involvement in the murder and spotless criminal record — resulting in a death-leaning jury. (ECF Doc. No. 249 at 28) Additionally, Petitioner alleges that the trial judge's repeated instructions that evidence which was admissible against one or two of the defendants was not admissible against another defendant resulted in a strong likelihood of jury confusion. (ECF Doc. No. 249 at 29)
Respondent alleges that the California Supreme Court reasonably denied this claim on direct appeal. The California Supreme Court found that in contesting the trial court's denial of his motion to sever, Petitioner improperly relied on "supposed conflicts," such as the removal of jurors who indicated that they might be unable to return a death verdict for McDonald, that occurred after the court had denied severance. Ervin, 22 Cal.4th at 68, 91 Cal.Rptr.2d 623, 990 P.2d 506. The California Supreme Court noted that "a motion to sever must be supported by adequate grounds existing at the time the motion is heard." Id. The California Supreme Court also rejected Petitioner's claim that the trial court had a sua sponte duty to sever once grounds for severance developed, as follows:
Id. at 69, 91 Cal.Rptr.2d 623, 990 P.2d 506 (internal citations omitted).
On habeas, a federal court's review of a state court's denial of a severance motion is not governed by state laws relating to severance. Grisby v. Blodgett, 130 F.3d 365, 370 (9th Cir.1997) ("We do not depend on the state law governing severance in state trials"). Nor is it governed by federal rules addressing severance in federal trials. Id.; see Collins v. Runnels, 603 F.3d 1127, 1131-32 (9th Cir. 2010) (finding that United States Supreme Court decisions addressing severance under federal rules do not apply to analysis of whether joinder in state courts was constitutional). Rather, its inquiry is limited to the petitioner's right to a fair trial under the United States Constitution. Grisby, 130 F.3d at 370. To prevail, a petitioner must demonstrate that the state court's joinder or denial of his severance motion resulted in prejudice great enough to render his trial fundamentally unfair. Id.
Here, Petitioner fails to establish that the trial court's joinder rendered his trial fundamentally unfair. Only one course of criminal conduct was involved, the evidence incriminating Petitioner was straightforward, and the roles of the defendants could easily be compartmentalized, as evidenced by the differing verdicts, i.e. the death penalty for Petitioner and McDonald, and life without parole for Robinson. As the California Supreme Court noted, no "gross unfairness" resulted from the trial court's failure to sever. Ervin, 22 Cal.4th at 69, 91 Cal.Rptr.2d 623, 990 P.2d 506.
Petitioner argues, nonetheless, that the jury could have been confused by the fact that some evidence was admissible only against certain defendants. For example, he refers to Gwyn Willis's statement that Petitioner said he was going to collect money from McDonald on the day after the murder. (ECF Doc. No. 249 at 29) Petitioner asserts that this statement was initially admitted only against Petitioner, but later deemed to be admissible against McDonald as well. Petitioner fails, however, to explain how he could have been prejudiced by these evidentiary rulings.
Petitioner also argues that joinder led to the jury hearing Gail Johnson's preliminary examination testimony that she saw Petitioner, Jack and Robinson at her home the night of the murder, that they left together, and that the next day, Robinson possessed a large sum of money. (ECF Doc. No. 249 at 29) She also testified about Robinson's comments about being involved in murder for hire. Petitioner contends that the jury heard this evidence only because trial had not been severed. The California Supreme Court, however, concluded that this evidence was admissible against Petitioner. Ervin, 22 Cal.4th at 84-85, 91 Cal.Rptr.2d 623, 990 P.2d 506. Gail Johnson's testimony thus would have been admitted even if the cases had been severed.
Petitioner further contends that his right to an impartial jury was violated because prospective jurors who would have been qualified to sit on his jury were eliminated solely because they were deemed unqualified to sit as jurors in his codefendant
Finally, Petitioner argues that the trial court's limiting instructions were futile in the face of the confusion allegedly suffered by the jury, and that the resulting prejudice violated the principles enunciated in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). In Bruton, the United States Supreme Court held that the use of the out-of-court confession (or inculpatory statements) of a codefendant who did not testify at trial violates the nonconfessing defendant's right of cross-examination secured by the Confrontation Clause of the Sixth Amendment, and this violation is not cured by a jury instruction that the confession should be disregarded in determining the nonconfessing defendant's guilt or innocence. 391 U.S. at 134-37, 88 S.Ct. 1620. In claiming alleged confusion caused by the statements of various witnesses who are not co-defendants, however, Petitioner's contentions go beyond the scope of the rule in Bruton, which is limited to incriminating statements made by a nontestifying codefendant. See 391 U.S. at 135-36, 88 S.Ct. 1620; accord Davidson v. Vasquez, No. 09-56691, 431 Fed.Appx. 607, 2011 WL 1748349 (9th Cir. May 9, 2011). Thus, Petitioner's claim 1 cannot rely on Bruton.
Petitioner fails to demonstrate that the California Supreme Court's rejection of this claim was contrary to or an unreasonable application of clearly established federal law, as determined by the United States Supreme Court. Accordingly, the Court grants Respondent's motion for summary judgment as to claim 1.
In claim 2, Petitioner alleges that the trial court violated his constitutional rights by improperly excusing for cause four prospective jurors, Joseph Pontes, Marilyn Pyle, Kathryn Kane and Jean Graham. He asserts that their views would not have substantially impaired their ability to be neutral and follow the court's directions in contravention of Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). Petitioner further alleges that these jurors were improperly asked to prejudge the evidence. Respondent contends that the California Supreme Court reasonably denied this claim.
On direct appeal, the California Supreme Court addressed this claim as follows:
Ervin, 22 Cal.4th at 69-71, 91 Cal.Rptr.2d 623, 990 P.2d 506.
A prospective juror must be removed for cause if his views or beliefs would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. Wainwright, 469 U.S. at 424, 105 S.Ct. 844. "Even if only one juror is unduly biased or prejudiced, the defendant is denied his constitutional right to an impartial jury." Tinsley v. Borg, 895 F.2d 520, 523-34 (9th Cir.1990) (internal quotation marks omitted). Federal habeas relief may be granted for a state trial court's failure to strike a juror for cause only when there is no fair support in the record for the trial court's determination that the juror was unbiased. Wainwright, 469 U.S. at 434, 105 S.Ct. 844. The state court's determination of juror partiality is entitled to a presumption of correctness on federal habeas review. Id. at 429, 105 S.Ct. 844; Patton v. Yount, 467 U.S. 1025, 1038, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984); see also United States v. Alexander, 48 F.3d 1477, 1484 (9th Cir.) (determination of impartiality particularly within province of trial judge), cert. denied, 516 U.S. 878, 116 S.Ct. 210, 133 L.Ed.2d 142 (1995).
Petitioner's contention that the prosecutor improperly asked the jurors to prejudge the evidence is unavailing. The disclosure of facts relating to McDonald's lack of a criminal record and non-participation in the killing were aimed at determining whether the prospective jurors would invariably decline to vote for death in a murder-for-hire case. See, e.g., questioning of Pontes, RT 1821 ("If ... you have concluded that ... the defendant McDonald hired people to kill his former wife ... murder for hire, if you will ... for that type of crime ... do you really think that you'd have an open mind ... as to both sentencing choices?"); questioning of Pyle, RT 2490-91 ("If, in the guilt phase of trial, you ... decided that Mr. McDonald hired two people to kill his former wife and the other two defendants participated in her murder. Basically, ... a murder for hire. Do you think you'd have an open mind in beginning the penalty trial as to both sentencing options?"); questioning of Kane, RT 3261 ("The facts ... are that Mr. McDonald... sought to have ... [his wife] murdered and he hired two others to do that ... Is that a type of crime that you think is serious enough in which the death penalty could possibly apply?") The record thus supports the California Supreme Court's determination that the dismissed jurors' reluctance to impose the death penalty was based not on an evaluation of the specific facts of the case, but on an "abstract inability to impose death on the hirer in a murder-for-hire case." Ervin, 22 Cal.4th at 70-71, 91 Cal.Rptr.2d 623, 990 P.2d 506.
The record supports the California Supreme Court's determination that Pontes' dismissal was proper. The prosecutor asked Pontes:
RT 1827. Pontes answered "no." Id.
After the prosecutor finished questioning Pontes, Spencer Strellis, McDonald's attorney, questioned Pontes as follows:
RT 1827-28. After this response, the trial court made the determination that based on Wainwright, Pontes' views would "substantially impair his ability to be neutral and follow the court's instructions." RT 1828.
In light of Pontes' statement that the crime at issue was not the "kind of crime" that would warrant the death penalty, the record supports the California Supreme Court's determination that Pontes expressed an "abstract inability to impose death on the hirer in a murder-for-hire case" and would therefore be unable to follow California law categorizing murder-for-hire as a death-eligible crime. Ervin, 22 Cal.4th at 70-71, 91 Cal.Rptr.2d 623, 990 P.2d 506. The record confirms that Pontes' views would impair his ability to perform his duties in contravention of Wainwright, 469 U.S. at 424, 105 S.Ct. 844 (prospective juror may be excluded for cause if the juror's views would prevent or substantially impair the performance of his duties in accordance with his instructions and oath). Furthermore, Respondent has failed to adduce clear and convincing evidence that the factual determination by the trial court was erroneous. Id. at 427, 435, 105 S.Ct. 844 (question of challenge of prospective juror for bias is factual issue entitled to presumption of correctness). The California Supreme Court reasonably denied this claim.
The record supports the California Supreme Court's determination that Pyle's
RT at 2517-18. Pyle replied that she did not think that she could vote for death given that scenario. RT 2518.
Shortly after the above conversation, Pyle engaged in the following exchange with the trial court:
RT 2519. In light of Pyle's confirmation that she had ruled out the death penalty with respect to McDonald, the record supports the California Supreme Court's determination that Pyle's views would impair her ability to perform her duties in contravention of Wainwright, 469 U.S. at 424, 105 S.Ct. 844. Respondent has failed to adduce clear and convincing evidence that the factual determination by the trial court was erroneous. Id. at 427, 435, 105 S.Ct. 844. Accordingly, the California Supreme Court reasonably denied this claim.
A review of the record reveals that the California Supreme Court reasonably determined that Kane's dismissal was proper. The prosecutor questioned her as follows:
RT 3267. Kane replied that under those specific circumstances she could not apply the death penalty. Id.
After the prosecutor finished his questioning, the trial court questioned Kane as follows:
RT 3268. In light of Kane's statement that she would rule out the death penalty for a person who hired others to commit a murder irrespective of any aggravating evidence that may be presented, the record supports the California Supreme Court's determination that Kane's views would impair her ability to perform her duties in contravention of Wainwright, 469 U.S. at 424, 105 S.Ct. 844. Here too, Respondent has failed to adduce clear and convincing evidence that the factual determination by the trial court was erroneous. Id. at 427, 435, 105 S.Ct. 844. Accordingly, the California Supreme Court reasonably denied this claim.
A review of the record reveals that the California Supreme Court reasonably determined that Graham's dismissal was proper. The prosecutor engaged in the following exchange with Graham:
RT 1404. Graham later reiterated her position, pointing out that the hirer (McDonald), "didn't do nothing. He just rolled out the program." RT 1407. In light of these statements, the record supports the California Supreme Court's determination that Graham's views would impair her ability to perform her duties in contravention of Wainwright, 469 U.S. at 424, 105 S.Ct. 844. Respondent again has failed to adduce clear and convincing evidence that the factual determination by the trial court was erroneous. Id. at 427, 435, 105 S.Ct. 844. The California Supreme Court reasonably denied this claim.
For the above mentioned reasons, the Court grants Respondent's motion for summary judgment as to claim 2.
Petitioner's third claim alleges that the trial court violated his constitutional rights by refusing to dismiss for cause nine jurors who demonstrated clear bias against the defense that arose either from their pro-death penalty views or prejudice against a nontestifying defendant. Petitioner asserts that he was forced to use his peremptory challenges to excuse six of the nine jurors, which left on the jury three allegedly "pro-death penalty" jurors: Robert Vanwagner, Dovie Cambra and Stanley Wyke.
On direct appeal, the California Supreme Court addressed this claim as follows:
Ervin, 22 Cal.4th at 71-72, 91 Cal.Rptr.2d 623, 990 P.2d 506.
Respondent contends that Petitioner's claim is procedurally defaulted because the state court concluded that defense counsel's failure to exhaust his peremptory challenges resulted in a waiver of the claim. Under the doctrine of procedural default, federal courts will not review "a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). In the interest of efficiency, the Court will assume that Petitioner's claim is not defaulted and will address the merits of his claim. See Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir.2002) ("procedural bar issues
The right of peremptory challenge is not guaranteed by the United States Constitution. See United States v. Martinez-Salazar, 528 U.S. 304, 311, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000). Rather, it is an important statutory right that courts have considered vital to the Sixth Amendment guarantee of an impartial jury trial. Id. It is clear, however, that as long as the jury that sits is impartial, the loss of a peremptory challenge does not violate the Sixth Amendment. Martinez-Salazar, 528 U.S. at 313, 120 S.Ct. 774; Ross v. Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988).
Petitioner's alleged loss of peremptory challenges resulting from the trial court's refusal to dismiss purportedly biased jurors did not violate his Sixth Amendment rights because Petitioner fails to demonstrate that the seated jury was impartial. Martinez-Salazar, 528 U.S. at 313, 120 S.Ct. 774. After reviewing the voir dire transcripts of the four disputed jurors — Robert Vanwagner, Dovie Cambra, Stanley Wyke
To the extent that Petitioner argues that the trial court's erroneous refusal to dismiss allegedly biased jurors for cause violated his right to due process by depriving him of the full complement of peremptory challenges available to him, this claim too fails because Petitioner fails to establish that he did not receive all that state law afforded him. The "right to peremptory challenges is denied or impaired [in violation of a defendant's due process rights] only if the defendant does not receive that which state law provides." Ross, 487 U.S. at 89, 108 S.Ct. 2273 (internal quotation marks omitted). Here, Petitioner does not allege that he did not receive all the peremptory challenges allowed under state law. To the contrary, Petitioner failed to exhaust his available peremptory challenges. Petitioner fails to establish a due process violation.
The California Supreme Court reasonably denied this claim. Accordingly, the Court grants Respondent's motion for summary judgment as to claim 3.
In claim four, Petitioner alleges that by allowing the attorneys to dismiss more than 600 jurors in extrajudicial proceedings conducted without his presence, the trial court denied him his constitutional right to be present at a critical stage of his proceedings and abdicated its obligation to empanel an impartial jury. With the agreement of counsel, the trial court developed a screening procedure that allowed counsel to jointly review the prospective jurors' questionnaires and by stipulation screen out the "strong candidates for excusal, i.e.,
Petitioner argues that the above jury screening process violated his right to be present at all critical stages of his proceedings, produced a pro-death penalty jury because many jurors were excluded based on their feelings about the death penalty without any determination of whether their views impaired their ability to be neutral and follow the law, and that this error mandates an automatic reversal of his death sentence. (ECF Doc. No. 249 at 46-47) Respondent contends that Petitioner's claim is procedurally defaulted, and also lacks merit because it was reasonably denied by the California Supreme Court.
The California Supreme Court addressed and rejected Petitioner's claim on direct appeal as follows:
Ervin, 22 Cal.4th at 72-74, 91 Cal.Rptr.2d 623, 990 P.2d 506
Respondent contends that Petitioner's claim is procedurally defaulted because the California Supreme Court concluded that Petitioner was barred from challenging on appeal the validity of procedures to which he stipulated. Id. at 73, 91 Cal.Rptr.2d 623, 990 P.2d 506. As discussed below, assuming that Petitioner's claim is not defaulted, it fails on the merits.
Voir dire is a critical stage of the criminal proceedings during which a
Here, although Petitioner was absent from counsel's screening discussions, Petitioner was present during the remainder of the jury selection process and had ample opportunity to observe jurors during voir dire and assist his attorneys in evaluating prospective jurors. Petitioner fails to establish that his absence during the screening of the jurors' questionnaires frustrated the fairness of his proceedings. Id.; see also Reyes, 764 F.3d at 1196 (district court's exclusion of defendant from side bar voir dire of prospective juror did not violate defendant's right to be present at every stage of trial). The California Supreme Court reasonably concluded that Petitioner's presence at the screening discussions would have served little purpose. Ervin, 22 Cal.4th at 74, 91 Cal.Rptr.2d 623, 990 P.2d 506.
Moreover, as the California Supreme Court pointed out, Petitioner stipulated to every aspect of the challenged jury screening procedure and further agreed to excuse every prospective juror he now claims was improperly excused. Ervin, 22 Cal.4th at 73, 91 Cal.Rptr.2d 623, 990 P.2d 506. The California Supreme Court has upheld such waivers. See, e.g., People v. Cudjo, 6 Cal.4th 585, 627-28, 25 Cal.Rptr.2d 390, 863 P.2d 635 (1993) (through stipulation of counsel, capital defendant waived his right to voir dire every prospective juror individually and in sequestration); People v. Visciotti, 2 Cal.4th 1, 37-38, 5 Cal.Rptr.2d 495, 825 P.2d 388 (1992). Petitioner fails to cite any authority establishing his waiver to be inadequate.
Finally, Petitioner's contention that the procedure resulted in an impartial jury is unavailing as he fails to establish that it actually resulted in the seating of a biased juror. As Respondent points out, the fact
For the above-mentioned reasons, the Court grants Respondent's motion for summary judgment as to claim 4.
In claim 5, Petitioner alleges that the prosecutor improperly used 9 of his 15 exercised peremptory challenges to excuse African American prospective jurors in violation of Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). He asserts that 9 of 11 African Americans drawn to serve were improperly challenged, which left just one African American, Harvey Hendrix, seated on the jury, and one African American, Rudolph Wilson, seated as an alternate. (ECF Doc. No 97 at 99-101). Petitioner argues that in response to defense counsel's challenge under Batson and its California analog, People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978), overruled in part by Johnson v. California, 545 U.S. 162, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005), the prosecutor offered pretextual justifications for his challenges, and that a comparative juror analysis, which the California Supreme Court erroneously declined to conduct on direct appeal, reflects the prosecutor's differential treatment of comparably situated jurors. Respondent counters that Petitioner's claim was reasonably denied by the California Supreme Court.
On direct appeal, the California Supreme Court addressed this claim as follows:
Ervin, 22 Cal.4th at 74-77, 91 Cal.Rptr.2d 623, 990 P.2d 506.
A state court's finding that the prosecutor did not engage in purposeful discrimination is reviewed under the deferential standard set forth in 28 U.S.C. § 2254(d)(2). Jamerson v. Runnels, 713 F.3d 1218, 1224 (9th Cir.2013). "Thus, the state court's decision will be upheld unless it was `based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'" Id. (citing 28 U.S.C. § 2254(d)(2)). In evaluating Batson claims presented in habeas petitions, a "doubly deferential standard" applies: "unless the state appellate court was objectively unreasonable in concluding that a trial court's credibility determination was supported by substantial evidence, we must uphold it ... This is because the question of discriminatory intent largely will turn on evaluation of credibility and evaluation of the prosecutor's state of mind based on demeanor and credibility evidence lies peculiarly within a trial judge's province." Id. at 1225 (internal quotation marks and citations omitted).
Where a state court declined to conduct a comparative juror analysis, the evaluation of the state court's disposition proceeds in two steps:
Id. at 1225-26.
Here, Petitioner alleges that the prosecutor improperly challenged prospective jurors Caroline Mullen, Lionel Jackson, Pamela Blake, Alfred Hudnall, JoAnn White, Eloise Knox, Lisa Kelley, James Thomas III and Roslyn Roberts based on race. In particular, he asserts that a comparative juror analysis reveals that the prosecutor's explanations for challenging three jurors, Lisa Kelley, James Thomas III and Roslyn Roberts, were inconsistent with his actions in accepting non-African Americans who gave similar responses. (ECF Doc. No. 249 at 50-51)
The prosecutor justified his peremptory challenges, by stating at the outset, that his challenges of all of the jurors, were based on their specific "attitudes regarding the death penalty." RT 9064. He then proceeded to provide additional individual justifications as follows:
As noted above, in reviewing Petitioner's Batson challenge on direct appeal, the California
With respect to 6 of the 9 challenged African American jurors, namely Caroline Mullen, Lionel Jackson, Pamela Blake, Alfred Hudnall, JoAnn White and Eloise Knox, Petitioner broadly alleges that the prosecutor improperly challenged them, but fails to advance specific arguments. In fact, his opposition does not even address the challenges of these six jurors. (ECF Doc. No. 249 at 48-53). As previously noted, state court factual findings are presumed correct; the petitioner has the burden of rebutting the presumption by "clear and convincing evidence." Rice v. Collins, 546 U.S. 333, 338-39, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006); Briggs, 682 F.3d at 1171. Here, Petitioner fails to meet this burden. Petitioner thus fails to establish that the state trial court was unreasonable to credit the prosecutor's race-neutral explanations for the peremptory challenges of the 6 jurors at issue. Rice, 546 U.S. at 338-39, 126 S.Ct. 969 (federal habeas court can only grant petition if it was unreasonable to credit the prosecutor's race-neutral explanations for Batson challenge).
Petitioner instead focuses his arguments on the challenges of James Thomas III, Lisa Kelley and Roslyn Roberts. Petitioner claims that a comparative analysis of these jurors demonstrates that the prosecutor's justifications were pretextual. As discussed below, Petitioner's arguments with respect to these three jurors are also unavailing.
Petitioner argues that the prosecutor's justification for the challenge of James Thomas — namely that he was "too young" and appeared too eager to forsake work and school to serve on the jury — was pretextual because the prosecutor did not express the same concern when white jurors indicated they would work evenings or not attend school in order to accommodate jury service. (ECF Doc. No. 249 at 50) Petitioner also states that a number of young non-African American jurors expressed a desire to be on the jury, and some were seated. Id.
The record confirms that Thomas was a full-time college student whose classes started at around 9:00 a.m. and ended at 1:50 or 2:00 p.m., and that he worked at Macy's as a junior executive in the evenings. RT 1334-35, 1365. Petitioner fails, however, to identify any of the non-African American jurors he claims were also too young and would have had to juggle school and work in order to accommodate jury service, let alone demonstrate that they faced an equally busy schedule. Petitioner merely raises conclusory allegations that unspecified jurors who were similarly situated to Thomas were seated. Petitioner fails to meet his burden of rebutting the state court's factual findings. See Briggs, 682 F.3d at 1171 (burden of disproving state court's factual findings by clear and convincing evidence rests with petitioner).
Furthermore, Thomas stated that on the prosecutor's "Rambo" scale of 1-10, with one being "not very pro death penalty," and ten representing "Rambo, somebody who'd shoot up everything," he gave himself a three. RT 1348. This supports the prosecutor's stated reason that his challenges of all of the jurors, were based on their specific "attitudes regarding the death penalty." RT 9064. Indeed, the trial
RT 9075. Based on this Court's review of the record, it was not unreasonable for the California Supreme Court to find that substantial evidence supported the trial court's determination that the prosecutor challenged Thomas for race-neutral, legitimate reasons. See Briggs, 682 F.3d at 1172 (based on review of record, California Court of Appeal's finding that substantial evidence supported trial court's determination that prosecutor challenged prospective juror for legitimate reasons was reasonable).
Petitioner further alleges that the prosecutor's justification for the challenge of Lisa Kelley — particularly that it would be an uphill battle to get her to impose the death penalty on McDonald — was pretextual because the prosecutor did not challenge Kimberly Goodman, even though she was similarly disinclined to impose death on McDonald. (ECF Doc. No. 249 at 51)
The record reveals that Kelley expressed equivocal views vis a vis the death penalty on voir dire. While Kelley asserted a general ability to impose the death penalty, see, e.g., RT 2746 ("Q: Do you think you could ever vote to impose the death penalty on another person ...? A: Yes, generally speaking"), see also RT 2762, Kelley equivocated when asked whether it was possible for her to vote for death in a murder-for-hire situation where the hirer had no prior criminal history and did not participate in the murder. She twice stated that she was uncertain as to whether she could vote for death in such a situation, see RT 2765 ("Q: Do you think that you... could ever, knowing that Mr. McDonald did not personally kill his ex-wife, could you ever consider the death penalty as to him? A: I don't know. I'd have to know more"), see also RT 2767. Kelley changed her mind, however, on further questioning. See, e.g., RT 2769 ("Q: Are you saying that in considering that evidence, even though there were no other aggravating circumstances, that all you had ... [was] the fact that he hired two people to kill his wife, are you saying that based on that evidence by itself ... that you could consider the death penalty as to Mr. McDonald? A: Yes.") Additionally, Kelley expressed some misgivings about the criminal justice system, stating that: "I feel that it is effective except that not everyone gets the punishment or even gets caught for things that they do." RT 2778.
In assessing the prosecutor's justification of his challenge of Kelley, the trial judge stated:
RT 9075.
Similarly to Kelley, Goodman initially expressed doubt about her ability to impose death on someone like McDonald, who did not participate in the actual killing of the victim. See, e.g., RT 3405 ("Q: Can you see yourself voting for death for Mr. McDonald? A: No ..."), see also RT 3407. On further questioning, however, Goodman repeatedly and firmly reaffirmed her ability to impose death on the hirer in a murder for hire case. See RT 3411 ("The Court: We don't want to know how you
Overall, when the totality of the evidence is considered, the state court's credibility determination with respect to the prosecutor's justification for striking Kelley withstands the applicable doubly deferential standard of review. Jamerson, 713 F.3d at 1225-26 ("we must assess how any circumstantial evidence of purposeful discrimination uncovered during comparative analysis alters the evidentiary balance and whether, considering the totality of the evidence, the state court's credibility determination withstands our doubly deferential review.") As explained by the Ninth Circuit in Aleman v. Uribe, 723 F.3d 976, 983 (9th Cir.2013), "[o]ne level of deference arises from the broad power of a trial court to assess credibility of the prosecutor's statements that were made in open court. Another level of deference arises from the AEDPA context where we defer to state court decisions that are not objectively unreasonable." Here, Petitioner has not set forth sufficient evidence to supercede the trial court's credibility determination. Jamerson, 713 F.3d at 1230 (even though prosecutor's reason for excusing juror was not compelling, evidence was insufficient to supercede trial court's credibility determination under doubly deferential standard).
Petitioner argues that the prosecutor's justification for the challenge of Roslyn Roberts, namely that he struck her because Petitioner's counsel did not ask her any questions, is pretextual because the prosecutor did not challenge white jurors, such as Robert Kelleher and Robert Vanwagner, who similarly were not questioned by the defense. (ECF Doc. No. 249 at 51, Doc. No. 97 at 124). Kelleher and Vanwagner were eventually seated as jurors.
Roberts, a registered nurse who dealt with crack babies, RT 8264-65, rated herself a "5" on the prosecutor's "Rambo" scale. RT 8256. The prosecutor justified his challenge of Roberts as follows:
RT 9068. The trial court assessed the prosecutor's justification as follows:
RT 9078.
The record reveals that Petitioner's counsel, Thomas Broome and Gail Brewster Hardy, indeed declined to ask Roberts questions. RT 8253-54 (Mr. Broome: "You wouldn't be terribly offended if I didn't ask you any questions?") Roberts was, however, amply questioned by Petitioner's codefendants' counsel. The record further confirms that Petitioner's counsel similarly declined to question Vanwagner and Kelleher. RT 8695, 7024.
It is questionable, however, whether Kelleher and Vanwagner were similarly situated jurors as Roberts. See, e.g., Jamerson, 713 F.3d at 1230-31 (two jurors not similarly situated where prosecutor was aware of the conviction of the siblings of one of the jurors, but not the other). Vanwagner had been the head teacher in juvenile hall, an insurance executive and a writer for television. RT 7030. Kelleher had been a salesman and also worked for New York Life as manager of accounting. RT 8706-07. Neither one of them worked in occupations involving the provision of medical treatment to crack babies, or dealt intimately with users of cocaine such as Petitioner, as did Roberts. See, e.g., RT 8255. The prosecutor could have reasonably viewed Petitioner's counsel's failure to ask Kelleher and Vanwagner questions differently from their failure to ask Roberts questions. In fact, the prosecutor himself asked Roberts whether her experience with users of cocaine would influence her views of the testimony of witnesses who used cocaine. RT 8265-66. These jurors may reasonably not have been similarly situated from the prosecutor's perspective.
Even if the prosecutor's justification for the lack of questioning by Petitioner's counsel were to be discredited, his alternate justification, namely the challenged jurors' "attitudes regarding the death penalty" remains. RT 9064. While Roberts, in many instances, asserted an ability to impose the death penalty, see, e.g., RT 8246, 8247, and as noted above, rated herself a "5" on the prosecutor's "Rambo" scale, she also made statements that qualified her views. Roberts stated that she would accept as a mitigating factor that the defendant "had a life prior to that incident. Sometimes turn of events cause people to just flip [out]." RT 8250. This statement suggests that she may have proved to be receptive to a defense theory that Petitioner "flipped out" as a result of his cocaine addiction, or that she might be reluctant to impose the death penalty on McDonald, whose conduct was likely to be portrayed as an aberration from an otherwise exemplary life. Roberts also stated that a person's use of cocaine has psychological ramifications that have to be taken into account: "... [U]nderstanding the psychological ramifications of coke — I don't mean coke — crack cocaine, you have to kind of take that into account; not saying that that person is totally irresponsible to the fact, but, you know, you really have to take it into account." RT 8265. This response suggests receptivity to the defense's likely mitigation theory.
Overall, even though the prosecutor's reasons for challenging Roberts may not have been compelling, Petitioner has not set forth sufficient evidence to supercede the trial court's credibility determination under the applicable doubly-deferential standard of review. Jamerson, 713 F.3d at 1230 (although reasonable minds may disagree about prosecutor's credibility, evidence was insufficient to supercede trial court's credibility determination under doubly deferential standard). Considering the totality of the evidence, the state court's credibility determination withstands doubly deferential review. Id. at
For the above-mentioned reasons, summary judgment on claim 5 is granted.
In claim 6, Petitioner alleges that the trial court violated his constitutional rights by failing to voir dire jurors regarding a sensational news article appearing in the Oakland Tribune on the morning of final jury selection regarding the exorbitant cost of his trial. In his opposition, Petitioner references, without citation to the record, two juror affidavits submitted in support of this claim, which purportedly demonstrate prejudice resulting from the lack of voir dire regarding the article. (ECF Doc. No. 249 at 54) Respondent similarly references these affidavits without citation to the record, stating instead that the affidavits accompanied the habeas petition that Petitioner submitted to the California Supreme Court. (ECF Doc. No. 213 at 41) Based on the Court's review of the record, these affidavits do not appear to have been filed in support of Petitioner's federal habeas petition.
As further directed below, the Court defers ruling on claim 6 until after Petitioner files a copy of these affidavits.
The Court hereby ORDERS as follows:
IT IS SO ORDERED.
