ROBERT N. BLOCK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable William Q. Hayes, United States District Judge, pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule 72.1(d) of the United States District Court for the Southern District of California.
On August 22, 2016, Petitioner Geronimo Polina ("Petitioner" or "Polina"), a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1 ("Pet.")).
On January 3, 2017, Respondent W. L. Montgomery, Warden ("Respondent"), filed an Answer and Notice of Lodgment. (ECF Nos. 15, 16.) On February 2, 2017, Petitioner filed a Traverse. (ECF No. 20 ("Trav.").)
Thus, this matter now is ready for decision. For the reasons discussed hereafter, the Court
On January 27, 2011, the People of the State of California ("People") filed a felony complaint against Petitioner, and five other inmates, Jose Manuel Garcia ("Garcia"), Eduardo Alberto Macias ("Macias"), Juan Gabriel Morones ("Morones"), Lionel Alvidrez Quinteros ("Quinteros"), and Francisco Daniel Valencia ("Valencia"), in Superior Court of California, County of San Diego, South County Division, Case No. SCS245331. (ECF No. 16-1 at 5-16; ECF No. 16-2 at 7.)
The complaint charged Petitioner with the following: (1) attempted murder, in violation of Penal Code
Following the preliminary hearing held on March 21, 2011, the Honorable Charles G. Rogers held the defendants to answer to all charges, but dismissed the arming allegation under Penal Code § 12022(b)(1) against Petitioner. (ECF No. 16-1 at 50; ECF No. 16-2 at 7, 50-51; ECF No. 16-4 at 7-10.)
On October 6, 2011, the Motion to Sever of defendants Garcia and Morones was granted. (Id. at 8.)
On October 24, 2011, an Amended Information was filed against Petitioner, Garcia, Macias, Morones, Quinteros, and Valencia in Superior Court of California, County of San Diego. (ECF No. 16-1 at 37-48.) The Amended Information included the following three counts against Petitioner: (1) conspiracy to commit murder (Penal Code § 187(a)), in violation of Penal Code § 182(a)(1) (Count 1); (2) attempted murder, in violation of Penal Code § 187(a) and Penal Code § 664 (Count 2); and (3); assault with a deadly weapon by a prisoner, in violation of Penal Code § 4501 (Count 4). (Id.) For each of these felony counts, it was alleged that Petitioner committed the felonies "for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members within the meaning of " Penal Code § 186.22(b)(1). (Id.) For Counts 2 and 4, it was further alleged that Petitioner "personally used a deadly and dangerous weapon, to wit: a knife or other sharpened instrument or object, within the meaning of" Penal Code § 12022(b)(1).
On or around January 23, 2012, the case was assigned to the Honorable Peter C. Deddeh for all purposes. (ECF No. 16-2 at 63.) The jury trial for Petitioner, and defendants Macias and Quinteros, commenced on or about December 5, 2012. (Id. at 8, 77.) Petitioner was represented by Frank V. Puglia. (Id.) On December 21, 2012, Petitioner and defendant Macias were convicted of Counts 1, 2, and 4 of the Amended Information. (Id. at 8, 105-10.) The jury further found that Petitioner and defendant Macias had committed the felonies "for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members within the meaning of" Penal Code § 186.22(b)(1). (Id.) Defendant Quinteros was convicted only of Count 4 of the Amended Information. (Id. at 8, 111-13.) The jury further found that Quinteros did not commit Count 4 for the benefit of, at the direction of, and in association with a criminal street gang within the meaning of Penal Code § 186.22(b)(1). (Id. at 113.)
Later, in a bifurcated proceeding, Petitioner admitted two of the three prior strike allegations, and the third strike allegation was dismissed. (ECF No. 16-14 at 3.) The Superior Court sentenced Petitioner to an aggregate prison term of 75 years to life plus 16 years. (Id.) The sentence consisted of an indeterminate term of 50 years to life for Petitioner's Count 1 conspiracy conviction, plus a consecutive indeterminate term of 25 years to life for his Count 2 attempted murder conviction, plus a consecutive determinate upper term of six years for his Count 4 aggravated assault conviction, plus a consecutive 10-year term for the Count 4 gang enhancement. (Id.) The Superior Court stayed under Penal Code § 654 the separate 10-year gang enhancements it imposed as to Counts 1 and 2. (Id.)
On June 18, 2014, Petitioner filed an appeal of the final judgment in the Court of Appeal. (ECF No. 16-12.) Petitioner raised five grounds for relief, including the following three claims being raised by Petitioner herein: (1) Petitioner's conspiracy conviction violated his due process rights under the Fourteenth Amendment and deprived him of a right to a fair trial because the conspiracy instructions did not require the jury to find that he personally participated in the conspiracy and personally harbored the specific intent to kill Ortiz; (2) the trial court abused its discretion and violated Petitioner's right to a fair and impartial jury under the Sixth and Fourteenth Amendments when it refused to declare a mistrial after Macias slashed his attorney's face with a razor in front of the jury; and (3) the trial court abused its discretion and violated Petitioner's right to a fair and impartial jury under the Sixth and Fourteenth Amendments when it refused to declare a mistrial after the jury observed Petitioner shackled two separate times following the courtroom assault by Macias. (Id.)
On March 19, 2015, the Court of Appeal affirmed the judgment of the Superior Court, with modifications. (ECF No. 16-14.) The judgment was modified to reduce the 10-year prison term imposed for the Count 4 gang enhancement to a five-year term under Penal Code § 186.22(b)(1)(B). (Id. at 56.) The judgment was also modified to stay under Penal Code § 654 the 25-year-to-life sentence the court imposed for Petitioner's Count 2 conviction of attempted murder, the six-year sentence imposed for Petitioner's Count 4 conviction of the substantive offense of assault with a deadly weapon by a prisoner, and the attendant Count 4 five-year gang enhancement. (Id. at 56-57.) The matter was remanded with directions that the Superior Court prepare an amended abstract of judgment to reflect the modifications. (Id. at 57.)
On April 20, 2015, Petitioner filed a Petition for Review in the Supreme Court of California. (ECF No. 16-15.) Petitioner raised the same three grounds for relief referenced above as he did in the Court of Appeal. (Id.)
On July 8, 2015, the California Supreme Court denied Petitioner's Petition for Review without comment or citation to authority. (ECF No. 16-16.)
The Court has independently reviewed the state court record. See Nasby v. McDaniel, 853 F.3d 1049, 1052-54 (9th Cir. 2017) (citing Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir. 1997)) (finding that "meaningful collateral review of the state court's adjudication of petitioner's claims requires an `independent' assessment of the basis for the state court's decision"). Based on its independent review of the record, the Court adopts the following factual summary from the "Factual Background" section of the unpublished California Court of Appeal
(ECF No. 16-14 at 6-10.)
1. Petitioner's right to due process was violated when the trial court failed to properly instruct the jury on the required elements of the conspiracy charge, and gave unclear and misleading instructions on aiding and abetting. (Pet. at 6-9.) As part of his due process claim, Petitioner further contends there was insufficient evidence to find him guilty of conspiracy. (Id. at 7.)
2. Petitioner's Sixth and Fourteenth Amendment rights were violated when the trial judge refused to call a mistrial after the jury witnessed Petitioner's co-defendant "slash" his own attorney. (Pet. at 10-12.)
3. Petitioner's Sixth and Fourteenth Amendment rights were violated when the trial judge refused to call a mistrial after the jury saw Petitioner shackled during trial. (Pet. at 13-14.) Petitioner's rights were also violated when the trial judge abdicated decision-making responsibility to security personnel regarding Petitioner's shackling, failed to guarantee his right to a fair trial by not holding a hearing to ensure Petitioner would not suffer prejudice as a result of the shackling, and failed to consider an alternative remedy. (Id.)
Under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"):
28 U.S.C. § 2254(d)(1)-(2).
Under the AEDPA, the "clearly established Federal law" that controls federal habeas review of state court decisions consists of holdings (as opposed to dicta) of Supreme Court decisions "as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000); see also Carey v. Musladin, 549 U.S. 70, 74 (2006).
Although a particular state court decision may be both "contrary to" and "an unreasonable application of" controlling Supreme Court law, the two phrases have distinct meanings. See Williams, 529 U.S. at 391, 404-05, 413. A state court decision is "contrary to" clearly established federal law if the decision either applies a rule that contradicts the governing Supreme Court law, or reaches a result that differs from the result the Supreme Court reached on "materially indistinguishable" facts. See Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam); Williams, 529 U.S. at 405-06. When a state court decision adjudicating a claim is contrary to controlling Supreme Court law, the reviewing federal habeas court is "unconstrained by § 2254(d)(1)." See Williams, 529 U.S. at 406. However, the state court need not cite or even be aware of the controlling Supreme Court cases, "so long as neither the reasoning nor the result of the state-court decision contradicts them." See Early, 537 U.S. at 8.
State court decisions that are not "contrary to" Supreme Court law may be set aside on federal habeas review only "if they are not merely erroneous, but `an unreasonable application' of clearly established federal law, or based on `an unreasonable determination of the facts.'" See Early, 537 U.S. at 11 (citing 28 U.S.C. § 2254(d)) (emphasis added). A state-court decision that correctly identified the governing legal rule may be rejected if it unreasonably applied the rule to the facts of a particular case. See Williams, 529 U.S. at 406-10, 413 (e.g., the rejected decision may state the Strickland standard correctly but apply it unreasonably); Woodford v. Visciotti, 537 U.S. 19, 24-27 (2002) (per curiam). However, to obtain federal habeas relief for such an "unreasonable application," a petitioner must show that the state court's application of Supreme Court law was "objectively unreasonable." Visciotti, 537 U.S. at 24-27; Williams, 529 U.S. at 413. An "unreasonable application" is different from an erroneous or incorrect one. See Williams, 529 U.S. at 409-10; Visciotti, 537 U.S. at 25; Bell v. Cone, 535 U.S. 685, 699 (2002). Moreover, review of state court decisions under § 2254(d)(1) "is limited to the record that was before the state court that adjudicated the claim on the merits." See Cullen v. Pinholster, 563 U.S. 170, 181-82 (2011).
As the Supreme Court explained in Harrington v. Richter, 562 U.S. 86 (2011):
Id. at 102.
Furthermore, "[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." See id. at 103.
Here, claims encompassing Grounds 1-3 of the Petition were raised by Petitioner on direct appeal and denied by the Court of Appeal in a reasoned decision. Those same claims encompassing Grounds 1-3 were then presented in Petitioner's Petition for Review, which the California Supreme Court denied. Accordingly, for purposes of applying the AEDPA standard of review to Grounds 1-3 herein, the Court of Appeal decision on direct appeal constitutes the relevant state court adjudication on the merits. See Berghuis v. Thompkins, 560 U.S. 370, 380 (2010) (where state supreme court denied discretionary review of decision on direct appeal, the decision on direct appeal is the relevant state-court decision for purposes of the AEDPA standard of review).
In Ground 1 of the Petition, Petitioner claims the trial court violated the due process clause of the Fourteenth Amendment by failing to properly instruct the jury on the required elements of the conspiracy charges. (Pet. at 2, 6.) Petitioner contends that the trial court failed to properly instruct the jury by not giving clearer instructions for CALCRIM Nos. 415 and 563. (Id. at 6.) Petitioner further contends the use of "a defendant" interchangeably with "the defendant" in the conspiracy instructions confused the jury, and that the consistent use of the phrase "the defendant" throughout the jury instructions would have prevented confusion because it would have specifically referred to Petitioner. (Id.)
Petitioner also claims that the trial court misled the jury by giving aiding and abetting instructions, CALCRIM Nos. 400 and 401, which did not limit criminal liability as an aider and abettor to the offenses of attempted murder and aggravated assault. (Id.) Petitioner contends that the aiding and abetting instructions given to the jury were confusing and misleading in light of the prosecution's theory of the case, which conflated the burden of proof for conspiracy with the burden of proof for aiding and abetting. (Id. at 6-9.)
Lastly, Petitioner claims that there was insufficient evidence to prove beyond a reasonable doubt that he participated in any conspiracy, or even had knowledge of one. (Id. at 7.) Petitioner contends that the prosecution had no evidence to prove his involvement in a conspiracy to commit murder, which is why the prosecution confused the jury with the aiding and abetting instruction. (Id.)
"What the factfinder must determine to return a verdict of guilty is prescribed by the Due Process Clause." Sullivan v. Louisiana, 508 U.S. 275, 277 (1993). "[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). A "jury instruction violates due process if it fails to give effect to that requirement." Middleton v. McNeil, 541 U.S. 433, 437 (2004) (citing Sandstrom v. Montana, 442 U.S. 510, 520-21 (1079)).
On federal habeas review of instructional error by a state court, federal courts are bound by a state court's interpretation of state law. Bradshaw v. Richey, 546 U.S. 74, 76 (2005); see also Estelle v. McGuire, 502 U.S. 62, 71-72 (1991) (the fact that a jury instruction "was allegedly incorrect under state law is not a basis for habeas relief"). Federal habeas relief based on instructional error is warranted only if the petitioner shows "both that the instruction was ambiguous and that there was "`a reasonable likelihood'" that the jury applied the instruction in a way that relieved the State of its burden of proving every element of the crime beyond a reasonable doubt." Waddington v. Sarausad, 555 U.S. 179, 190-91 (2009) (citing Estelle, 502 U.S. at 73, n.4 (quoting Boyde v. California, 494 U.S. 370, 379-80 (1990))).
In making this determination, the jury instruction "`may not be judged in artificial isolation,' but must be considered in the context of the instructions as a whole and the trial record." Estelle, 502 U.S. at 72 (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). "[N]ot every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation." Middleton, 541 U.S. at 437. "Because it is not enough that there is some `slight possibility' that the jury misapplied the instruction, Weeks v. Angelone, 528 U.S. 225, 236 (2000), the pertinent question `is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process,'" Estelle, 502 U.S. at 72 (quoting Cupp, 414 U.S. at 147)." Waddington, 555 U.S. at 191.
Petitioner's jury received the following relevant conspiracy instructions:
(ECF No. 16-1 at 114-16, 122-24; ECF No. 16-14 at 12-15 (underlining emphasis added).)
Before the Court of Appeal, Petitioner contended that his conviction on Count 1 of conspiracy to commit murder must be reversed because:
(ECF No. 16-14 at 21-22 (emphasis in original).)
Although the Court of Appeal acknowledged that the standard conspiracy instructions set forth in CALCRIM Nos. 563 and 415 use the terms "The/the defendant" rather than "A/a defendant" in explaining the specific intent elements, the Court of Appeal rejected Petitioner's claim that the conspiracy instructions given at trial incorrectly stated the law regarding the elements of conspiracy to commit murder. (Id. at 23-24.) Specifically, the Court of Appeal rejected Petitioner's assertion that "the term `[a] defendant,' as used in the portions of the conspiracy instructions pertaining to the specific intent elements of the count 1 conspiracy offense, meant `any one of the three defendants'—[Petitioner], Macias, or Quinteros—that were on trial in th[e] case, for the simple reason that the two terms are not synonymous." (Id.) The Court of Appeal added:
(Id. at 24 (emphasis in original).)
Thus, the Court of Appeal held that "[a]ny reasonable jury would understand that the term `a defendant' in the first clause—'To prove that a defendant is guilty of this crime' (italics added)—meant `a given defendant,' and that the subsequent use of the term `a defendant' in this portion of the instruction meant the same defendant, not `any one of the three defendants.'" (Id.) The Court of Appeal accordingly rejected Petitioner's claim that the conspiracy instructions incorrectly stated the law regarding the elements of conspiracy to commit murder. (Id.)
As a preliminary matter, the Court is bound by the Court of Appeal's determination that the conspiracy instructions given, CALCRIM Nos. 415 and 563, correctly stated California law regarding the elements of conspiracy to commit murder. See Bradshaw, 546 U.S. at 76; Estelle, 502 U.S. at 71-72.
Next, the Court finds the Court of Appeal reasonably concluded that the trial court's instructions to the jury on conspiracy were not ambiguous. See Waddington, 555 U.S. at 191 (finding the Washington courts reasonably concluded a certain jury instruction was not ambiguous where it was "impossible to assign any meaning to th[e] instruction different from the meaning given to it by the Washington courts"). For the same reasons given by the Court of Appeal, as set forth above, the Court finds that CALCRIM Nos. 415 and 563, as given at trial, were not ambiguous, as it is impossible to assign any meaning to the instructions different than the meaning given by the Court of Appeal. Because the conclusion of the Court of Appeal that the jury instructions were unambiguous was not objectively unreasonable, the Court's § 2254(d)(1) inquiry should end here. See id. at 190-92.
However, even if assuming arguendo that the instructions were ambiguous, the Court finds that the Court of Appeal reasonably applied Supreme Court precedent when it determined that there was no "reasonable" likelihood that the jury applied the conspiracy instructions in a way that relieved the prosecution of its burden of proving every element of the crime beyond a reasonable doubt. See id. at 192-93; see also ECF No. 16-14 at 22. ("Petitioner "has failed to demonstrate a reasonable probability that the jury convicted him of count 1 [conspiracy] without finding that he (1) specifically intended to agree or conspire to murder Ortiz, and (2) specifically intended to murder him.").
The record reflects that during jury instructions, the trial judge began by stating: "All the defendants in this case are charged with the same crimes. You must separately consider the evidence as it applies to each defendant. You must decide each charge for each defendant separately." (ECF No. 16-9 at 23 (emphasis added).) The trial judge then went on to instruct the jury that in order to be guilty of the crime of conspiracy, a defendant must have done so with a specific intent or mental state, and that if the prosecution does not prove their case beyond a reasonable doubt, the jury "must find the defendants, or any individual defendant against whom the case has not been proven, not guilty." (Id. at 30, 31 (emphasis added).) Later, when instructing the jury on the conspiracy charge, the trial judge specifically stated, on multiple occasions, that the jury "must make a separate decision as to whether each defendant was a member of the alleged conspiracy." (Id. at 40, 47 (emphasis added).)
Thereafter, in closing arguments, the prosecutor stated:
(Id. at 67-68 (emphasis added).)
The prosecutor proceeded to walk the jury through each charge and argue why "each defendant is guilty of that particular charge." (Id. at 70.) For the conspiracy to commit murder charge, the prosecutor argued that all three defendants joined the conspiracy, at the very least, "at the time of the attack, because [it was] a coordinated attack" and "as soon as they ma[d]e a move to attack Ortiz, that shows their membership in that conspiracy . . . ." (Id. at 83.)
Based on the foregoing, regardless of any alleged ambiguity in the use of the terms "a defendant" and "the defendant" in the conspiracy instructions, the jury was properly instructed that it must find guilt as to each defendant individually. The trial record also evidences that the jury understood the conspiracy instructions, as it found two of the three defendants, Petitioner and Macias, guilty of conspiracy, and found the third defendant, Quinteros, not guilty of conspiracy. (Id. at 202-05.)
Given the foregoing, the Court finds the allegedly ailing conspiracy instructions, by themselves, did not so infect the entire trial that the resulting conviction violated due process, and that it was not objectively unreasonable for the Court of Appeal to conclude the jury convicted Petitioner of conspiracy only because it believed he specifically intended to agree or conspire to murder Ortiz, and that he specifically intended to murder him.
Accordingly, Petitioner is not entitled to habeas relief on this part of Ground 1.
Petitioner's jury received the following aiding and abetting instructions:
(ECF No. 16-1 at 111-13.)
Petitioner contends the prosecution confused the jury by not limiting the aiding and abetting instructions given at trial, CALCRIM Nos. 400 and 401, to the offenses of attempted murder and aggravated assault. (Pet. at 6.) Petitioner further contends that the prosecution's closing argument regarding the conspiracy charge — that all three defendants joined the conspiracy, at the very least, "at the time of the attack, because it [was] a coordinated attack" — was confusing to the jury. (See id. at 6-7; ECF No. 16-9 at 83.) Petitioner asserts that this line of argument may have caused the jury to confuse the theory of aiding and abetting, which does not require a prior agreement, with conspiracy, which does require such an agreement. (ECF No. 16-12 at 26.) In other words, Petitioner argues the jury may have found Petitioner guilty of conspiracy on an aiding and abetting theory, which is insufficient under the law.
As the Court of Appeal stated:
(ECF No. 16-14 at 19.) Liability on an aiding and abetting theory, on the other hand, does not require an agreement between two or more people. (ECF No. 16-1 at 112-13 (CALCRIM 401).) Therefore, Petitioner argues that a person can aid and abet without entering a conspiracy; however, an aider and abettor cannot be held liable for the crime of conspiracy without more. (See Pet. at 8.)
The Court of Appeal addressed this argument and rejected Petitioner's contention that the prosecution relied on an improper legal theory. (ECF No. 16-14 at 26.) The Court of Appeal reasoned:
(Id.)
Even assuming the aiding and abetting instructions given to the jury were ambiguous, Petitioner is not entitled to relief unless he demonstrates that there was a "reasonable likelihood" that the jury applied the instructions in a way that relieved the People of its burden of proving every element of the crime beyond a reasonable doubt. See Waddington, 555 U.S. at 190-91. Here, the Court finds that the Court of Appeal reasonably determined that the prosecutor's closing argument did not cause the jury to apply the aiding and abetting instructions in a way that relieved the People of its burden as to the conspiracy charge. See id. at 192-93.
At no point did the trial court, the prosecution, Petitioner's counsel,
(ECF No. 16-9 at 187.)
Based on the foregoing, the Court finds that Petitioner has failed to demonstrate that the Court of Appeal's rejection of his aiding and abetting jury instruction claim either was contrary to, or involved an unreasonable application of, clearly established Supreme Court law.
Accordingly, Petitioner is not entitled to habeas relief on this part of Ground 1.
As the final part of his due process claim, Petitioner contends there was insufficient evidence to prove beyond a reasonable doubt that he participated in any conspiracy, or even had knowledge of one. (Pet. at 7.) Petitioner argues that the prosecution had no evidence to prove his involvement in a conspiracy to commit murder, which is why the prosecution confused the jury with the aiding and abetting instruction. (Id.)
The Due Process Clause of the Fourteenth Amendment protects a criminal defendant from conviction "except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. at 364; accord Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). Thus, a state prisoner who alleges that the evidence introduced at trial was insufficient to support the jury's findings states a cognizable federal habeas claim. Herrera v. Collins, 506 U.S. 390, 401-02 (1993). But the prisoner faces a "heavy burden" to prevail on such a claim. Juan H., 408 F.3d at 1274, 1275 n.13. The question is whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original).
When determining the sufficiency of the evidence, a reviewing court makes no determination of the facts in the ordinary sense of resolving factual disputes. Sarausad v. Porter, 479 F.3d 671, 678 (9th Cir.), vacated in part, 503 F.3d 822 (9th Cir. 2007), rev'd on other grounds, 555 U.S. 179 (2009). Rather, the reviewing court "must respect the province of the jury to determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences from proven facts by assuming that the jury resolved all conflicts in a manner that supports the verdict." Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995); see also Jackson, 443 U.S. at 319, 324, 326. Thus, in determining the sufficiency of the evidence, "the assessment of the credibility of witnesses is generally beyond the scope of review." Schlup v. Delo, 513 U.S. 298, 330 (1995); see also United States v. Lindsey, 634 F.3d 541, 552 (9th Cir. 2011); Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir. 2004) ("A jury's credibility determinations are . . . entitled to near-total deference under Jackson.").
While "mere suspicion or speculation cannot be the basis for the creation of logical inferences," Maass, 45 F.3d at 1358 (citation and internal quotation marks omitted), "[c]ircumstantial evidence can be used to prove any fact, including facts from which another fact is to be inferred, and is not to be distinguished from testimonial evidence insofar as the jury's fact-finding function is concerned." United States v. Stauffer, 922 F.2d 508, 514 (9th Cir. 1990). Furthermore, "to establish sufficient evidence, the prosecution need not affirmatively rule out every hypothesis except that of guilt." Schell v. Witek, 218 F.3d 1017, 1023 (9th Cir. 2000) (en banc) (citation and internal quotation marks omitted).
In post-AEDPA cases, where, as here, a state court has issued a reasoned decision rejecting a claim of insufficient evidence under a standard that is not "contrary to" Jackson, a reviewing federal court applies an additional layer of deference. Juan H., 408 F.3d at 1274. "[A] federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was objectively unreasonable." Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam) (citation and internal quotation marks omitted); see also Juan H., 408 F.3d at 1275 n.13. This "double dose of deference . . . can rarely be surmounted." Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011); see also Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam) ("We have made clear that Jackson claims face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference").
Thus, a state court's resolution of an insufficiency of the evidence claim is evaluated under 28 U.S.C. § 2254(d)(1), not § 2254(d)(2). See Emery v. Clark, 643 F.3d 1210, 1213-14 (9th Cir. 2011) ("When we undertake collateral review of a state court decision rejecting a claim of insufficiency of the evidence pursuant to 28 U.S.C. § 2254(d)(1) . . . we ask only whether the state court's decision was contrary to or reflected an unreasonable application of Jackson to the facts of a particular case"); see also Long v. Johnson, 736 F.3d 891, 896 (9th Cir. 2013) ("The pivotal question, then, is whether the California Court of Appeal . . . unreasonably applied Jackson in affirming Petitioner's conviction for second-degree murder"); Boyer, 659 F.3d at 965 ("[T]he state court's application of the Jackson standard must be `objectively unreasonable' to warrant habeas relief for a state court prisoner"); Juan H., 408 F.3d at 1275 ("[W]e must ask whether the decision of the California Court of Appeal reflected an `unreasonable application of' Jackson and Winship to the facts of this case") (citing 28 U.S.C. § 2254(d)(1)).
Finally, in adjudicating an insufficiency of the evidence claim, a federal habeas court "look[s] to [state] law only to establish the elements of [the crime] and then turn[s] to the federal question of whether the [state court] was objectively unreasonable in concluding that sufficient evidence supported [the conviction]." Juan H., 408 F.3d at 1278 n.14 (citation omitted); see also McCurdy v. Attorney Gen., 229 F. App'x. 665, 666-67 (9th Cir. 2007) ("We look to [state] law only to establish the elements of the crime and then turn to the federal question of whether the state court was objectively unreasonable in concluding that sufficient evidence supported the conviction")(citation, internal alterations and quotation marks omitted); Chein v. Shumsky, 373 F.3d 978, 983 (9th Cir. 2004) (en banc) ("The Jackson standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law") (citation and internal quotation marks omitted). In determining whether the evidence was sufficient, a federal court must follow the California courts' interpretation of state law. Bradshaw, 546 U.S. at 76; Emery, 643 F.3d at 1214.
Under California law, a conviction for conspiracy requires proof of the following four elements:
(See ECF No. 16-14 at 19; see also Trav. at 9-10.)
In rejecting Petitioner's insufficiency of the evidence claim, the Court of Appeal did not explicitly refer to Jackson. (See ECF No. 16-14 at 25-26.) However, the California standard for determining sufficiency of the evidence to support a conviction has been held by the California Supreme Court to be identical to the federal standard enunciated by the United States Supreme Court in Jackson. See People v. Johnson, 26 Cal.3d 557, 576 (1980).
In finding that there was sufficient evidence to support a conspiracy conviction, the Court of Appeal reasoned as follows:
(ECF No. 16-14 at 25-26.)
The gravamen of Petitioner's challenge to the Court of Appeal's rejection of his insufficiency claim appears to be that he disputes the Court of Appeal's statement in its opinion that "it is not necessary to demonstrate that the parties met and actually agreed to undertake the unlawful act," but rather a conspiracy may be proved through circumstantial evidence. (See Pet. at 6-9; Trav. at 12 (citing ECF No. 16-14 at 25 (citing People v. Prevost, 60 Cal.App.4th 1382, 1399 (1998); People v. Vu, 143 Cal.App.4th 1009, 1024-25 (2006)).) According to Petitioner, this is an inaccurate statement of the law. (See Trav. at 12.) However, the fallacy of Petitioner's contention is that the Supreme Court has "repeatedly held that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus." See Bradshaw, 546 U.S. at 76. Moreover, as noted above, for purposes of the Jackson standard, circumstantial evidence can be used to prove any fact. See Stauffer, 922 F.2d at 514.
For the foregoing reasons, the Court finds that Petitioner has failed to establish that the Court of Appeal's rejection of his insufficiency of the evidence claim was contrary to, or involved an unreasonable application of, clearly established Supreme Court law.
Accordingly, Petitioner is not entitled to habeas relief on this last part of Ground 1.
In Ground 2 of the Petition, Petitioner claims his Sixth and Fourteenth Amendment rights were violated when the trial judge refused to call a mistrial after the jury witnessed Petitioner's co-defendant Macias "slash" his own attorney. (Pet. at 10-12.)
Based on its independent review of the record, the Court adopts the following factual summary of the Macias incident from the Court of Appeal opinion as a fair and accurate summary of the underlying facts
(ECF No. 16-14 at 27-36 (emphasis in original).)
A criminal defendant has a Sixth Amendment right to an impartial jury where jurors consider only the evidence which is presented to them in open court. Turner v. Louisiana, 379 U.S. 466, 472-73 (1965) ("The requirement that a jury's verdict must be based upon the evidence developed at the trial goes to the fundamental integrity of all that is embraced in the constitutional concept of trial by jury."). However, "due process does not require a new trial every time a juror has been placed in a potentially compromising situation . . . . Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen." Smith v. Phillips, 455 U.S. 209, 217 (1982).
Pursuant to clearly established Supreme Court precedent, "[a] court confronted with a colorable claim of juror bias must undertake an investigation of the relevant facts and circumstances." Dyer v. Calderon, 151 F.3d 970, 974 (9th Cir. 1998) (citing 28 U.S.C. § 2254(d)(3)(1994); Remmer v. United States, 350 U.S. 377, 379 (1956); Remmer v. United States, 347 U.S. 227, 230 (1954)
Here, the record reflects the trial court complied with Supreme Court precedent by investigating the relevant facts and circumstances of alleged juror bias. In accordance with Remmer and Smith, as set forth above, a hearing was held to determine whether Petitioner suffered prejudice as a result of the Macias incident. After Petitioner's co-defendants made a motion for mistrial, the trial judge held an in camera hearing with counsel present, and "individually and privately questioned each of the 12 jurors and three alternate jurors outside the presence of the defendants and other jurors." (ECF No. 16-14 at 28, 33; see also ECF No. 16-8 at 37, 57.) The trial judge generally asked each juror four questions:
(ECF No. 16-14 at 33.)
After two jurors indicated they did not believe they could be fair and impartial after observing Macias's conduct, the trial judge excused and replaced them with alternate jurors. (Id. at 34.) The remaining jurors indicated they could fairly and impartially evaluate the evidence and the incident would not influence how they viewed the evidence against Petitioner and his co-defendants. (Id. at 33.) The trial judge found them credible and let them remain on the jury. (ECF No. 16-14 at 33-35; ECF No. 16-8 at 69-71.)
Following the in camera questioning of the jurors, all three defendants made a motion for a mistrial, and Petitioner moved for severance of his trial. (ECF No. 16-14 at 34; ECF No. 16-8 at 61-73.) The trial court thereafter permitted defense counsel, outside the presence of the jury, to make arguments in support of their motion. (ECF No. 16-8 at 61-73.) Defense counsel argued that Macias's conduct painted Petitioner and co-defendant Quinteros in a bad light, and that the jurors could not put the courtroom incident aside even if they said they could. (ECF No. 16-8 at 61-73.) The trial court disagreed. (ECF No. 16-14 at 34-35; ECF No. 16-8 at 70-73.) After taking into consideration the prosecution's arguments, the trial court denied the motions for a mistrial and Petitioner's severance motion. (Id.)
Subsequently, prior to deliberations, the trial court gave the jury the following special limiting instruction: "In reaching your determination, you are not to consider anything that you observed, or heard in the courtroom on December 13, 2012. Those events should not enter into or affect your deliberations in any way." (ECF No. 16-14 at 35; ECF No. 16-1 at 100.)
Based on the foregoing, the Court finds the Court of Appeal's determination that the trial court did not abuse its discretion in denying Petitioner's motion for mistrial on the issue of juror bias was not contrary to, nor an unreasonable application of, Remmer and Smith. See Hedlund v. Ryan, 854 F.3d 557, 574 (9th Cir. 2017) (citing Smith, 455 U.S. at 215) (stating that where the trial judge conducts a hearing to explore the issue of juror bias and the defendant has the opportunity to prove actual bias, "[t]his is the remedy prescribed by the Supreme Court.")
Petitioner challenges the sufficiency of the trial court's impartiality finding as to Juror No. 2. Petitioner argues that Juror No. 2 admitted he was affected by the attack, and therefore this was evidence of actual bias.
Here, Petitioner has not met his burden of adducing clear and convincing evidence to overcome this presumption. See 28 U.S.C. § 2254(e)(1); see also Smith, 455 U.S. at 218 (reiterating Supreme Court law that in § 2254 habeas proceedings the trial judge's findings are presumptively correct and cannot be overcome without clear and convincing evidence). Petitioner simply points to Juror No. 2's statements to the trial judge during the in camera hearing as clear and convincing evidence rebutting this presumption. (Pet at 11-12; Trav. at 18.) The Court disagrees.
As the Court of Appeal observed, after Juror No. 2 stated that the Macias incident would have "an effect" and observed "a young man that had a very bad temper," he stated he could set aside what happened in court and decide the case on what was said on the witness stand. (ECF No. 16-14 at 34.) The trial court found Juror No. 2's statement that he could be fair and impartial to be credible. (ECF No. 16-14 at 34.) In addition, although Juror No. 2 stated that the jury would be "doing a lot of talking" about the incident once the jurors adjourned, the trial judge indicated the conversation should not be about what happened between Macias and his counsel, and Juror No. 2 stated he understood. (ECF No. 16-14 at 33.) The trial court was satisfied that no actual bias was present.
An initial equivocal response by a juror does not rebut the presumption the trial court's finding was correct, so long as the juror ends his answer with an unqualified affirmative or negative regarding impartiality, which occurred here. See Hedlund, 854 F.3d at 574, n. 11 (citing United States v. Gonzalez, 214 F.3d 1109, 1114 (9th Cir. 2000)). Petitioner points to no authority requiring more assurance from Juror No. 2 than an unqualified statement that he could be fair and impartial. See id. at 574 & n. 11 (citing Bashor v. Risley, 730 F.2d 1228, 1237 (9th Cir. 1984) (no error in keeping juror when juror responded to the question whether she could be impartial with, "Yes, I think I could.")) (finding that petitioner did not rebut the presumption where the juror stated that she "believed" she could be impartial, where the juror did not equivocate, and the trial court "credited her response after asking further questions, observing her demeanor, and judging her credibility").
Petitioner also challenges the Court of Appeal's finding that the jurors who convicted him were not inherently biased. Petitioner contends there was incurable and inherent prejudice caused by the Macias incident, and that even if the jurors stated they could be impartial, it was erroneous to determine they could be under the circumstances. (Pet. at 12.) Petitioner argues that it is "highly unlikely" that any juror could have exercised independent judgment after witnessing Macias's attack on his attorney, even if the juror stated that he or she could. (Id. at 10-12.)
Implied bias is "bias conclusively presumed as a matter of law." United States v. Mitchell, 568 F.3d 1147, 1151 (9th Cir. 2009) (citing Gonzalez, 214 F.3d at 1111). Both the Ninth Circuit and the Supreme Court have presumed bias based on the circumstances in "extraordinary cases." See Mitchell, 568 F.3d at 1151; Dyer, 151 F.3d at 981 (collecting cases); Estrada v. Scribner, 512 F.3d 1227, 1240 (9th Cir. 2008). Implied bias is a mixed question of law and fact. Estrada, 512 F.3d at 1240; see also Hamilton v. Ayers, 583 F.3d 1100, 1107 (9th Cir. 2009). "[M]ixed questions of law and fact, including the prejudice determinations in jury misconduct . . . petitions, are generally reviewed under section 2254(d)(1), not section 2254(d)(2)." Tong Xiong v. Felker, 681 F.3d 1067, 1074 (9th Cir. 2012).
However, there is no clearly established Supreme Court law regarding the issue of implied bias.
Petitioner therefore is not entitled to habeas relief on Ground 2.
In Ground 3 of the Petition, Petitioner claims his Sixth and Fourteenth Amendment rights were violated when the trial court refused to declare a mistrial after the jury was prejudiced to believe he was "violent, dangerous, and unpredictable because he was `shackled' in the same way as his co-defendant [who] `slashed' his attorney in court, in front of the jury." (Pet. at 13.) Petitioner contends the trial court had a responsibility to hold a hearing to ensure he would not suffer from a prejudiced jury, and to consider an alternative remedy to shackling. (Id.) Petitioner further contends that his rights were violated when the trial judge failed to guarantee his right to a fair trial by abdicating decision-making responsibility to security personnel regarding Petitioner's shackling. (Id. at 13-14.)
Based on its independent review of the record, the Court adopts the following factual summary of the shackling incidents from the Court of Appeal opinion as a fair and accurate summary of the underlying facts
(ECF No. 16-14 at 42-45 (emphasis in original).)
During the guilt phase of a criminal trial "the Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a trial court determination, in the exercise of its discretion, that they are justified by a state interest specific to a particular trial. Such a determination may . . . take into account the factors that courts have traditionally relied on in gauging potential security problems and the risk of escape at trial." Deck v. Missouri, 544 U.S. 622, 629 (2005); see also Cox v. Ayers, 613 F.3d 883, 890 (9th Cir. 2010) ("The appearance of a defendant in shackles before a jury in either the guilt phase or the penalty phase of a trial may constitute a violation of the defendant's right to due process.").
The Supreme Court has recognized that the shackling of defendants in front of the jury during the guilt phase "undermines the presumption of innocence and the related fairness of the factfinding process," "diminishes" the accused's ability to community with his lawyer, and "affront[s] the dignity and decorum of judicial proceedings that the judge is seeking to uphold." Deck, 544 U.S. at 630-32 (citations omitted). Therefore, although it acknowledges there will be cases "where these perils of shackling are unavoidable," . . . "given their prejudicial effect, due process does not permit the use of visible restraints if the trial court has not taken account of the circumstances of the particular case." Id. at 632 (emphasis added); see also Larson v. Palmateer, 515 F.3d 1057, 1063 (9th Cir. 2008) (noting the Supreme Court in Deck specifically rejected "post-hoc rationales" for imposing security restraints; and finding that the petitioner's "due process rights were violated when the trial court failed to make a finding on the record justifying the necessity of physical restraints, and that the absence of such a finding cannot be cured by the reviewing court's after-the-fact justifications.)
In order to demonstrate that his shackling at trial amounted to a constitutional violation, Petitioner must demonstrate: (1) that he was physically restrained in the presence of the jury, (2) that the shackling was seen by the jury, (3) that the physical restraint was not justified by state interests, and (4) that he suffered prejudice as a result. See Cox, 613 F.3d at 890 (citing Ghent v. Woodford, 279 F.3d 1121, 1132 (9th Cir. 2002)). In the context of a habeas proceeding, the use of physical restraints visible to the jury prejudices a defendant if it "had substantial and injurious effect or influence in determining the jury's verdict." Cox, 613 F.3d at 891 (citing Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)); see also Elmore v. Sinclair, 799 F.3d 1238, 1247 (9th Cir. 2015); Ghent, 279 F.3d at 1132 n.9.
Here, with respect to the first prong, the record reflects that on December 14, 2012, Petitioner and his co-defendants were shackled in front of the jury for a brief period of time when the trial judge excused the jury for the weekend just prior to closing arguments. (See ECF No. 16-8 at 51-52; 60-61; ECF No. 16-9 at 7-8.) With respect to the second prong, the record reflects that at least some members of the jury witnessed, or were exposed to, Petitioner and his co-defendants being unbolted from the floor as defendants were removed from the courtroom after the Macias incident. (See ECF No. 16-8 at 51-52; ECF No. 16-9 at 7-8.)
With respect to the third prong, the record reflects that prior to Petitioner appearing before the jury in shackles, the trial court made no determination that the use of physical restraints visible to the jury was justified by a state interest specific to the trial. In fact, the trial court made the opposite determination, by making a finding prior to trial that Petitioner's leg shackles should be concealed from the jury, and that he should not appear in front of the jury in handcuffs. (See ECF No. 16-8 at 51.) Even after the Macias incident, the trial court made the explicit determination that Petitioner should appear without handcuffs in front of the jury. (See id.)
When Petitioner moved for a mistrial on the basis that he appeared briefly in front of the jury in shackles, the trial court still did not make any attempt to determine that the shackles were required by a state interest specific to the trial. (ECF No. 16-9 at 7.) Rather, the trial judge, in denying Petitioner's motion for a mistrial, stated:
(Id. at 7-8.) Thus, at no time did the trial court make a determination that Petitioner's visible shackling in front of the jury was justified by an essential state interest.
On appeal, the Court of Appeal did not dispute that Petitioner appeared in front of the jury in shackles without a prior determination that such an appearance was justified. (See ECF No. 16-14 at 42-45, 49-50.). Rather, the Court of Appeal concluded that there was a "manifest need" for courtroom security personnel to act as they did immediately after the Macias incident, and that "the [trial] court's decision to allow the jury to `very briefly' see [Petitioner] and his codefendants with their hands restrained the next morning was similarly justified."
On collateral review, a federal court may not overturn the state court's decision unless it applied its harmless error standard in an "objectively unreasonable" manner. Davis v. Ayala, 135 S.Ct. 2187, 2198-99 (2017) (citing Mitchell v. Esparza, 540 U.S. 12, 18 (2003)); see also Fry v. Pliler, 551 U.S. 112, 119 (2007) (a "federal court may not award habeas relief under § 2254 unless the harmlessness determination itself was unreasonable"). A state court decision is not unreasonable if fairminded jurists could disagree on its correctness. Id. at 2199 (internal quotations omitted) (citing Richter, 562 U.S. at 101). Petitioner must therefore show that the state court's decision to reject his claim "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. (citing Richter, 562 U.S. at 103).
In determining whether visible physical restraints prejudiced a defendant, the Ninth Circuit has "considered the appearance and visibility of the restraining device, the nature of the crime with which the defendant was charged and the strength of the state's evidence against the defendant." Larson, 515 F.3d at 1064 (citing Dyas v. Poole, 317 F.3d 934, 937 (9th Cir. 2003)). "`[T]he greater the intensity of shackling . . . the greater the extent of prejudice,' because elaborate physical restraints are more likely to create the appearance of the defendant's dangerousness." Id. (quoting Spain v. Rushen, 883 F.2d 712, 722 (9th Cir. 1989)). "Hence, physical restraints such as a waist chain, leg irons or handcuffs may create a more prejudicial appearance than more unobtrusive forms of restraint." Id. (citing Spain, 883 F.2d at 722). In addition, if the defendant is charged with a violent crime, then the risk of prejudice increases, because shackling "essentially brand[s][him] as having a violent nature." Rhoden v. Rowland, 172 F.3d 633, 637 (9th Cir. 1999). Concerns about prejudice may be mitigated, however, if the state's evidence against the defendant was "overwhelming," or if the shackling is only for a brief period of time. See Dyas, 317 F.3d at 937; Elmore, 799 at 1248; see also Cox, 613 F.3d at 891 ("[W]e have held that the unconstitutional shackling of a defendant results in prejudice only if the evidence of guilt is not `overwhelming.'").
Here, Petitioner's hands appeared shackled before the jury for a very brief period of time, only minutes, after his co-defendant slashed his own counsel. (See ECF No. 16-2 at 98.) Otherwise, his hands were not shackled throughout the trial. In addition, although the jurors were exposed to Petitioner being unbolted from the floor after the Macias incident, it is unclear the extent to which the jurors saw or were even aware of the fact given all that was going on. The trial court and the defendants also made the decision not to raise or instruct the jury on the issue so as not to bring attention to it. Taken together, the Court finds these factors weigh against a finding of prejudice.
Weighing in favor of a finding of prejudice is the fact Petitioner was charged with conspiracy to commit murder, attempted murder, and assault by means likely to cause great bodily harm, which are violent crimes. Petitioner argues the shackling eroded his presumption of innocence because it suggested to the jury that he is a dangerous person who must be separated from society. (Trav. at 22.) Mitigating this impact, however, is the fact the jury was fully aware Petitioner had been in prison, was a validated member of the Mexican Mafia, and was on trial for attempted murder while in prison. Thus, the fact that Petitioner was restrained, though not visibly, during trial, and briefly shackled as the trial court sorted through the Macias incident, could easily be viewed as a practical security measure given Petitioner's history rather than an indication of guilt.
In addition, although the Court does not necessarily find that the state's evidence against Petitioner was overwhelming on all counts, there was substantial evidence against Petitioner, and the jury only deliberated for the afternoon before coming back and finding Petitioner guilty on all counts. (See ECF No. 16-2 at 103-04; ECF No. 16-9 at 199-200.) Lastly, as noted by the Court of Appeal, the jury found Quinteros not guilty on two counts, even though the jury also saw Quinteros shackled and bolted to the floor during the trial. This supports the conclusion that the jurors remained impartial and the outcome was not influenced by Petitioner's appearance in shackles.
Based on the foregoing, this Court finds the Court of Appeal did not apply its harmless error standard in an objectively unreasonable manner when it determined there was no prejudicial error. Moreover, the Court does not have "grave doubt" that Petitioner's brief appearance wearing shackles and leg restraints in front of the jury had a "substantial and injurious effect or influence in determining the jury's verdict." See Davis, 135 S.Ct. at 2197-98 (citing Brecht, 507 U.S. at 637; O'Neal v. McAninch, 513 U.S. 432, 436 (1995)) ("In a collateral proceeding . . . relief is proper only if the federal court has grave doubt about whether a trial error of federal law had substantial and injurious effect or influence in determining the jury's verdict.")
Accordingly, Petitioner is not entitled to habeas relief on Ground 3.
Petitioner appears to assert a cumulative error claim in his Petition. (See Pet. at 13-14.) As Respondent points out, Petitioner never presented this claim to the California Supreme Court for consideration, and therefore, it is not exhausted. See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) ("[S]tate 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."). However, without waiving this argument, Respondent asserts the claim should be rejected as meritless. (ECF No. 15-1 at 25-26.)
The AEDPA requires a petitioner to "exhaust[] the remedies available in the courts of the State" before he may obtain federal habeas relief. See 28 U.S.C. § 2254(b)(1)(A); Alfaro v. Johnson, 862 F.3d 1176, 1180 (9th Cir. 2017). The exhaustion requirement is rooted in the principle of comity, and "reduces friction between the state and federal court systems by avoiding the unseemliness of a federal district court's overturning a state court conviction without the state courts having had an opportunity to correct the constitutional violation in the first instance." O'Sullivan, 526 U.S. at 845 (internal alterations and quotation marks omitted). Nevertheless, a habeas petitioner may be excused from exhausting a given claim where (1) "there is an absence of available State corrective process," or (2) "circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b)(1)(B)(i)-(ii). Neither of these exceptions to AEDPA's exhaustion requirement applies in this case.
"[A] district court is permitted to stay a mixed petition—a petition containing both exhausted and unexhausted claims—in `limited circumstances,' so that a petitioner may present his unexhausted claims to the state court without losing his right to federal habeas review due to the relevant one-year statute of limitations." Wooten v. Kirkland, 540 F.3d 1019, 1023 (9th Cir. 2008) (citing Rhines v. Weber, 544 U.S. 269, 273-75, 277-78 (2005)). However, "a district court must stay a mixed petition only if: (1) the petitioner has `good cause' for his failure to exhaust his claims in state court; (2) the unexhausted claims are potentially meritorious; and (3) there is no indication that the petitioner intentionally engaged in dilatory litigation tactics." Id. (citing Rhines, 544 U.S. at 278).
The Court finds that Petitioner has not established good cause for his failure to exhaust his cumulative error claim in state court. Moreover, it is unclear whether Petitioner intends to assert this claim. In his Petition, Petitioner does not separate out this claim, and in his Traverse, he does not address it at all. As such, the Court need not address the remaining two factors. See Wooten, 540 F.3d at 1023.
Regardless, the Court finds Petitioner is not entitled to habeas relief on a cumulative error theory. The Supreme Court recognizes the possibility that the combined effect of discrete trial errors, when none of them individually warrants relief, can be found to have had a substantial and injurious effect on the jury's verdict. See Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007) ("The Supreme Court has clearly established that the combined effect of multiple trial court errors violates due process where it renders the resulting criminal trial fundamentally unfair."); Phillips v. Woodford, 267 F.3d 966, 985-86 (9th Cir. 2001) ("We consider the cumulative prejudicial effect of multiple trial errors in determining whether relief is warranted."), citing Mak v. Blodgett, 970 F.2d 614, 622 (9th Cir. 1992) (per curiam) (holding "significant errors occurred that, considered cumulatively, compel affirmance of the district court's grant of habeas corpus," citing Circuit cases recognizing the cumulative impact of multiple deficiencies); see also Alcala v. Woodford, 334 F.3d 862, 882-83 (9th Cir. 2003) (holding "district court did not err in finding that the combined prejudice of the multiple errors committed in this case deprived [petitioner] of a fundamentally fair trial and constitutes a separate and independent basis for granting his petition.").
Because the only possible trial court error in this case was the trial court's failure to make a prior determination of the need for visible shackling, there was no prejudice here to accumulate. See, e.g., Davis v. Woodford, 384 F.3d 628, 654 (9th Cir. 2004); Karis v. Calderon, 283 F.3d 1117, 1132 (9th Cir. 2002), cert. denied, 539 U.S. 958 (2003); see also Jones v. Stotts, 59 F.3d 143, 147 (10th Cir. 1995) (noting that cumulative-error analysis evaluates only effect of matters determined to be error, not cumulative effect of non-errors). "One error is not cumulative error." United States v. Sager, 227 F.3d 1138, 1149 (9th Cir. 2000). Therefore, this Court finds Petitioner cannot satisfy the standards for habeas relief based on a theory of cumulative error. Petitioner has not established that two or more substantial errors occurred in his case which, considered in combination, could overcome their failures individually to satisfy the substantial and injurious effect on the outcome of his trial standard. See Parle, 505 F.3d. at 927.
Any party having objections to the Court's proposed findings and recommendations shall serve and file specific written objections within
The parties are advised that Rule 11 provides that in habeas corpus matters pursuant to 28 U.S.C. § 2254, the District Judge must issue or deny a Certificate of Appealability when a final order adverse to the applicant is entered. The parties may wish to take this Rule into consideration at the time they file any Objections to the Report and Recommendation.
The Report and Recommendation of a Magistrate Judge is not a final appealable order. Any Notice of Appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of a judgment and/or order by the District Judge.
