YVONNE GONZALEZ ROGERS, District Judge.
Now before the Court is petitioner Jose Bautista's amended petition for a writ of habeas corpus. (Dkt. No. 4, Petition.) The government answered on December 1, 2016, (Dkt. No. 24-1), and petitioner filed a traverse in reply on February 6, 2017. (Dkt. No. 27, Traverse.) Petitioner claims that his counsel rendered ineffective assistance. Specifically, petitioner claims that counsel failed to: (1) investigate, obtain an expert on, and move to exclude the prosecution's evidence on gunshot residue ("GSR")
Based thereon, petitioner seeks a writ of habeas corpus. Having carefully considered the petition and the papers submitted, and for the reasons stated below, the petition for such relief is
On July 21, 2011, a Santa Clara County jury found petitioner Jose Bautista guilty of second degree robbery, attempted second degree robbery, and willful discharge of a firearm with gross negligence. (Dkt Nos. 8, 9, Court of Appeal Order at 1.) The jury found true the state's allegations that defendant personally used and intentionally discharged a firearm during the commission of the robbery and attempted robbery. Id. On May 23, 2013, the trial court sentenced petitioner to a term of twenty-two years in state prison. (Dkt. Nos. 24-4, Exh. A at 380; 24-7, Exh. D at 597-599.) On March 2, 2015, the California Court of Appeal affirmed the judgment of the trial court in an unpublished opinion and denied the habeas petition. (Court of Appeal Order at 1.) In addressing the petitioner's claims on appeal, the California Court of Appeal summarized the relevant facts as follows:
Id. at *1-5. On June 10, 2015, the California Supreme Court denied review of the Court of Appeals decision regarding petition's ineffective assistance of counsel ("IAC") claims. (Dkt. No. 24-27, Exh. O.)
A federal court may entertain a petition for a writ of habeas corpus on behalf of a person in state custody "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Under the Antiterrorism and Effective Death Penalty Act ("AEDPA") of 1996, section 2254(d)(1), a state prisoner can obtain habeas relief regarding a claim adjudicated in state court only if the adjudication "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established [f]ederal 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 [s]tate court proceeding." 28 U.S.C. § 2254(a).
A state court decision is "contrary to" clearly established federal law, as determined by the Supreme Court, 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 v. Taylor, 529 U.S. 362, 412-13 (2000). A state court decision is considered an "unreasonable application" of clearly established federal law, as determined by the Supreme Court, if it correctly identifies a governing legal principle from a Supreme Court decision but "unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. A federal court reviewing a habeas petition cannot 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, a federal court may grant the writ only if they find the state court decision was contrary to or an unreasonable application of a clearly established federal law. Id. at 412-13. The Supreme Court has ruled that the petitioner has the burden of showing that a state court decision is an objectively unreasonable application of clearly established federal law. See Cullen v. Pinholster, 563 U.S. 170, 181 (2011); Harrington v. Richter, 562 U.S. 86, 98, 101-03 (2011).
AEDPA requires a highly deferential standard for evaluating state court rulings and "demands that state court decisions be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24 (2002); see also Lindh v. Murphy, 521 U.S. 320, 334 n.7 (1997). "[A] habeas court must determine what arguments or theories supported or . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court." Harrington, 562 U.S. at 102. A federal court should only grant relief due to a constitutional error of the state court when the error was not harmless, that is, only if it had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 623, 638 (1993).
A district court may review a state court's determination de novo where the court failed to adjudicate a petitioner's claim on the merits. See Johnson v. Williams, 133 S.Ct. 1088, 1097 (2013) ("The language of 28 U.S.C. § 2254(d) makes it clear that this provision applies only when a federal claim was `adjudicated on the merits in State court.'"). "When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington v. Richter, 562 U.S. 86, 99 (2011) (noting, however, that this presumption may be overcome where "there is reason to think some other explanation for the state court's decision is more likely"). Moreover, "[w]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).
An application for a writ of habeas corpus on behalf of a person in custody, pursuant to a State court judgment, "shall not be granted unless it appears that [] the applicant has exhausted the remedies available in courts of the State." O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). Accordingly, "[b]efore a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court." Id; Rose v. Palmateer, 395 F.3d 1108, 1110 (9th Cir. 2005) ("Pursuant to 28 U.S.C. § 2254(b)(1)(A), a federal court may not consider the merits of [petitioner's] claim unless he has exhausted all available state court remedies.").
In order to exhaust a claim, the defendant must "fairly present" the factual and legal bases for each claim to the state's highest court. Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 275 (1971). "[A] claim for relief in habeas corpus must include reference to a specific federal constitutional guarantee, as well as a statement of the facts that entitle the petitioner to relief." Gray v. Netherland, 518 U.S. 152, 162-163 (1996). Thus, state prisoners must "give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process," including discretionary review to the state supreme court if that is the state's practice. O'Sullivan v, 526 U.S. at 845.
Petitioner now asserts two grounds for relief: IAC based on counsel's failure to (1) investigate available literature on required procedures for the collection and testing GSR samples, consult and retain an expert on, and pursue a motion to exclude the prosecution's evidence on GSR; and (2) request a lesser-included firearm enchantment instruction. The government concedes petitioner has exhausted his remedies as to issue 1, but contends that issue 2 is unexhausted because the claim was never presented to the California Supreme Court. (Dkt. No. 24-1 at 15.) With regard to both grounds for relief, petitioner argues that the California Court of Appeal did not rule on the merits of petitioner's habeas petition and thus the court's decision is not entitled to deference.
The Court first addresses the issue of exhaustion as to issue 2.
Having reviewed Bautista's petition for review to the Supreme Court of California, the Court finds that petitioner did not "fairly present" the factual and legal bases for his IAC claim that trial counsel failed to request an instruction on a lesser-included firearm enhancement to the California Supreme Court. (Dkt. No. 24-26, Exh. N, Petition for Review to Supreme Court of California; Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 275 (1971).) Thus, the state court has not had "one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sulliban v. Boerckel, 526 U.S. 838, 842 (1999). Rose v. Palmer, 395 F.3d 1108, 1110 (9th Cir. 2005) ("a federal court may not consider the merits of [petitioner's] claim unless he has exhausted all available state court remedies). Petitioner does not address issue 2 in his Traverse, suggesting that he concedes that state court remedies have not been exhausted with regard to issue 2.
Because petitioner has not exhausted available state court remedies, this Court may not consider the merits of petitioner this claim. See Rose, 395 F.3d at 1110; 28 U.S.C. § 2254(b)(1)(A) (". . . . An application for a writ of habeas corpus . . . shall not be granted unless it appears that — (A) the applicant has exhausted the remedies available in the courts of the State . . .")
The Court now turns to whether the California Court of Appeal issued a decision on the merits regarding claim 1. Petitioner claims that the state court did not rule on the merits of Bautista's habeas petition and the court's decision is therefore not entitled to deference. Specifically, petitioner arguers that the Court of Appeal did not "discuss or indicate that it considered the facts alleged in the petition for a writ of habeas corpus or the supporting exhibits." (Petition at 45.)
Petitioner does not persuade. The state court plainly considered and discussed the petition for a writ of habeas corpus. (Court of Appeal Order at 2 ("Appellate counsel has filed a petition for writ of habeas corpus, which this court considered with the appeal . . . .").) Further, the state court's ruling addressed several aspects of petitioner's IAC claims reflected in issue 1. The Court recognizes that the state court did not specifically discuss each and every one of petitioner's arguments, notably counsel's failure to consult and retain an expert on GSR. However, the state court may have simply chosen to address what it deemed to be the stronger of the multiple ineffective assistance arguments, specifically counsel's failure to investigate and move to exclude the GSR evidence in its entirety. The circumstances thus do not warrant an inference that the state court failed to adjudicate issue 1 on the merits. See Harris v. Superior Court of State of Cal., Los Angeles Cty., 500 F.2d 1124, 1128 (9th Cir. 1974) (a "postcard denial without opinion" constitutes adjudication on the merits absent circumstances indicating otherwise). Thus, the state court decision is entitled to deference.
In order to establish IAC, petitioner must show that: (i) his counsel performed deficiently and (ii) the deficient performance in fact prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). A reviewing court should deny an IAC claim if the petitioner cannot adequately demonstrate either of the Strickland prongs. Id. at 697 (courts are not required to address both prongs of the test if the petitioner fails on one).
In establishing the first prong of Strickland, petitioner must show that his counsel's performance was deficient, i.e., it fell below an "objective standard of reasonableness" under predominant professional norms. Id. at 687-88. The reviewing court should treat counsel's conduct with a strong presumption that the conduct is within the realm of reasonable professional assistance. See id. at 689.
In order to establish the second prong, petitioner must show counsel's deficient performance prejudiced him, i.e., that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. Petitioner must establish that counsel's errors were so severe as to dispossess the petitioner of a fair trial and reliable verdict. Id. at 692. When a petitioner is challenging a conviction, the pertinent question is "`whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.'" Hinton v. Alabama, 134 S.Ct. 1081, 1089 (2014) (quoting Strickland, 466 U.S. at 694). For petitioner to show prejudice due to counsel's failure to file a motion, petitioner has to prove that (1) had his counsel filed the motion, it is reasonably probable that motion would have been granted, and (2) had the motion been granted, it is reasonably probable that the result of the trial would have been more favorable to him. Wilson v. Henry, 185 F.3d 986, 990 (9th Cir. 1999).
For a federal court reviewing IAC claims in a habeas proceeding, the question "is not whether a federal court believes the state court's determination" under Strickland "was incorrect[,] but whether [that determination] was unreasonable—a substantially higher threshold." Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (citations omitted). Under section 2254(d), a federal habeas court reviewing Strickland claims should apply a decidedly deferential standard to state court decisions. See Knowles, 556 U.S. at 123 (citing Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003)); see also Cullen, 563 U.S. at 202 (holding that a federal habeas court applies a "doubly deferential" standard of review in analyzing IAC claims under section 2254). In examining a habeas IAC claim, if petitioner cannot prove the deficient performance prong, a federal court does not need to explore Strickland's prejudice prong. See Siripongs v. Calderon, 133 F.3d 732, 737 (9th Cir. 1998). Inversely, it is unnecessary for a federal habeas court to decide whether counsel's performance was deficient before examining whether petitioner was prejudiced due to the purported deficient performance of his counsel. See Strickland, 466 U.S. at 697; Williams v. Calderon, 52 F.3d 1465, 1470 & n.3 (9th Cir. 1995) (affirming the district court's refusal to contemplate whether counsel deficiently performed after already deciding that petitioner could not show prejudice).
The pronounced deference in Strickland for reviewing a defense counsel's effectiveness provides state courts with more flexibility in reasonably applying the rule, consequently "translat[ing] to a narrower range of decisions that are objectively unreasonable under AEDPA." Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Because the Strickland prejudice examination is comprehensive in itself, there is no need for a habeas court to employ the harmless error review under Brecht. Brecht, 507 U.S. at 637; see also Musladin v. Lamarque, 555 F.3d 830, 834 (9th Cir. 2009).
"[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691. "In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Id.
Petitioner argues that his trial counsel's failure to (1) investigate, (2) consult and retain an expert on, and (3) move to exclude the prosecution's evidence on gunshot residue was IAC. The state court rejected petitioner's claim, reasoning that the decision not to pursue a motion to exclude the GSR evidence was reasonable. Specifically, the state court found that had counsel pursued such a motion the trial court could have reasonably determined that criticisms regarding the reliability of the GSR evidence went to weight, not admissibility. The Court of Appeal explained:
Id. at*5-8. The Court addresses separately whether counsel's failure to (1) investigate, (2) consult and retain an expert on, and (3) move to exclude the GSR evidence was IAC.
First, petitioner argues that his counsel provided ineffective assistance of counsel when he failed to obtain and review readily-accessible literature on the required procedures for collecting and testing GSR samples. Bautista contends that counsel could have used publicly-available law enforcement guidelines in moving to exclude the GSR evidence. According to petitioner, these guidelines provide a basis to exclude the GSR evidence because the guidelines discourage use of GSR samples collected more than four hours post-shooting and specifically recognize that a handcuffed person's hands can be contaminated by GSR in the backseat of a squad car. The state court disagreed.
With regard to the first guideline, the state court found that law enforcement protocols on appropriate GSR testing timelines reflect significant differences in opinion. According to the FBI Law Enforcement Bulletin from 2011, some participants at the FBI Laboratory Gunshot Residue Symposium would view that the six-hour lag between the shooting and sampling at issue here as appropriate. In fact, others participants reported that they felt comfortable accepting samples more than 12 hours after a shooting. Thus, the state court found that Bautista failed to establish that the four-hour time lag at issue here rendered the GSR evidence so unreliable as to warrant exclusion. The state court's determination was reasonable and subject to this Court's deference.
The second guideline states that GSR samples, "preferably" should be taken before the suspect is transported to the police station. Further, it specifies that samples should be taken prior to handcuffing. As the state court recognized, the samples here were taken after petitioner was handcuffed, transferred to the squad car, and transported to the police station. On the other hand, the state court cited contrary evidence indicating that these collection deficiencies did not cause the GSR evidence to be present on petitioner's person. Notably, the GSR evidence included a complete particle of GSR and individual component elements on both of petitioner's hands, both sleeves of his sweatshirt, and the front of his sweatshirt. The state court reasonably determined that the presence of multiple particles on different areas of petitioner's body and clothing negated the possibility of contamination or interference. Had the GSR been transferred to petitioner when petitioner was being handcuffed or transferred to the police station, the court reasoned, it is unlikely that GSR components would be found on several different parts of petitioner's body and clothing. Accordingly, the Court of Appeal concluded that trial counsel was not ineffective because petitioner failed to establish that a motion to exclude the GSR based on the above-referenced literature would not have been meritorious. The Court finds that this determination was reasonable and subject to this Court's deference.
Consequently, the Petition on this ground is
Petitioner's second argument centers on counsel's failure to consult and hire an expert on GSR. Here, counsel consulted with Dr. Diaz, a professor in the department of biomedical, chemical, and materials engineering at San Jose State University, College of Engineering, before deciding to withdraw counsel's motion in limine to exclude the GSR evidence. Petitioner claims that Dr. Diaz was not qualified to educate counsel on GSR or the reliability of the collection methods in this case. The state court did not specifically discuss this argument, but did state generally that Bautista failed to establish that a motion to exclude the GSR evidence would have been meritorious.
The Court finds that counsel was not deficient in failing to hire an expert on GSR. After consulting Dr. Diaz, counsel determined that a motion in limine to exclude the GSR evidence would have failed. Counsel was not required to "shop" for experts who might have provided a different opinion or focused on a different aspect of the evidence. See Turner v. Calderon, 281F. 3d 851, 875-876 (9th Cir. 2002); Babbitt v. Calderon, 151 F.3d 1170, 1174 (9th Cir. 1998); Hendricks v. Calderon, 70 F.3d 1032, 1038-1039 (9th Cir. 1995). "In many instances cross-examination will be sufficient to expose defects in an expert's presentation." Richter, 562 U.S. at 111. Counsel is not required to put on an expert on GSR merely because the prosecution opted to do so. Richter, 562 U.S. at 111("Strickland does not enact Newton's third law for the presentation of evidence, requiring for every prosecution expert an equal and opposite expert from the defense. . . ."); Bonin v. Calderon, 59 F.3d 815, 838 (9th Cir. 1995) ("while the Constitution requires that a criminal defendant receive effective assistance of counsel, the presentation of expert testimony is not necessarily an essential ingredient of a reasonably competent defense"); Miller v. Anderson, 255 F.3d 455, 459 (7th Cir. 2001) ("A defendant's lawyer does not have a duty in every case to consult experts even if the government is proposing to put on expert witnesses.").
Here, counsel consulted with a professor of biomedical, chemical, and materials engineering before deciding to withdraw the motion in limine to exclude the GSR. This was sufficient. Trial counsel's decision not to retain an expert was not deficient because counsel had no duty to do so. See Richter, 562 U.S. at 111; Bonin v, 59 F.3d at 838; Miller v. Anderson, 255 F.3d at 459. Further, even assuming, arguendo, that counsel's decision not to retain an expert was deficient, petitioner cannot show prejudice. Counsel's cross-examination of Ms. Hengoed was "sufficient to expose defects in an expert's presentation," Richter, 562 U.S. at 111, as counsel elicited an admission from Ms. Hengoed that the GSR evidence was not conclusive of petitioner's firearm use.
Once again, the Court finds that the state court's determination that counsel was not ineffective was reasonable and subject to this Court's deference.
Thus, the Petition on this ground is likewise
Finally, petitioner argues generally that counsel's failure to move to exclude the GSR and expert testimony of Ms. Hengoed was IAC. Bautista contends that the GSR evidence was so unreliable as to require exclusion. Based thereon, petitioner claims Ms. Hengoed's expert testimony, which was based on the GSR evidence, would lack foundation. However, as discussed above, the state court reasonably determined that criticisms of the GSR went to weight, not admissibility.
Further, Ms. Hengoed specifically addressed flaws in the GSR collection process during her testimony. She conceded, during cross-examination, the possibility that the GSR was transferred to petitioner when petitioner was handcuffed or in the squad car. The state court reasonably found that the GSR collection method, while flawed in some ways, was not so unreliable as to require exclusion. See People v. Catlin, 25 Cal.4th 81, 134 (2001). Therefore, any criticism of Ms. Hengoed's testimony similarly went to weight, not admissibility. Accordingly, the Court of Appeal's conclusion that it was not outside the scope of professional conduct for petitioner's trial counsel to decide not to bring a motion to exclude the GSR evidence or the testimony of Ms. Hengoed was reasonable and subject to this Court's deference.
Thus, the Petition on this ground is
For the foregoing reasons, the Court
