Larry Darnell Taylor v. Tim Busby, No. 2:2011cv08253 - Document 23 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Oswald Parada. IT THEREFORE IS ORDERED that Judgment be entered denying the Petition and dismissing this action with prejudice. (See document for specifics) (mrgo)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 LARRY DARNELL TAYLOR, 12 Petitioner, 13 14 v. TIM BUSBY, Warden, 15 Respondent. 16 ) Case No. CV 11-8253-OP ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) 17 I. 18 PROCEEDINGS 19 On October 4, 2011, Larry Darnell Taylor ( Petitioner ) filed a Petition for 20 Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 21 ( Petition ). On March 22, 2012, Respondent filed an Answer to the Petition. 22 (ECF No. 18.) On April 11, 2012, Petitioner filed a Traverse to the Answer. (ECF 23 No. 22.) Thus, this matter is ready for decision.1 24 25 26 1 Pursuant to 28 U.S.C. § 636(c) and C.D. Cal. R. 73-3, the parties consented to proceed before the United States Magistrate Judge in the current 28 action. (ECF Nos. 3, 16.) 27 1 1 II. 2 PROCEDURAL HISTORY 3 On July 16, 2009, Petitioner was convicted after a jury trial in the Los 4 Angeles County Superior Court of the sale, transportation, or offer to sell cocaine 5 base (Cal. Health & Safety Code § 11352(a)). (Clerk s Transcript ( CT ) at 227.) 6 In a separate proceeding, the trial court found true the special allegations that 7 Petitioner had suffered fifteen prior strike convictions (Cal. Penal Code §§ 667(b)8 (i), 1170.12(a)-(d)), one prior drug conviction (Cal. Health & Safety Code § 9 11370.2(a)), and had served a prison term within five years of the charged offense 10 (Cal. Penal Code § 667.5(b)). (CT at 227.) On August 14, 2009, Petitioner was 11 sentenced to a total state prison term of fourteen years.2 (Id. at 334-37.) 12 Petitioner appealed the conviction to the California Court of Appeal.3 13 (Lodgments 9-15.) On June 8, 2011, the court of appeal affirmed the judgment. 14 (Lodgment 17.) 15 On June 29, 2011, Petitioner filed a petition for review in the California 16 Supreme Court. (Lodgment 18.) On August 17, 2011, the supreme court denied 17 review. (Lodgment 19.) 18 III. 19 SUMMARY OF THE EVIDENCE PRESENTED AT TRIAL 20 Since Petitioner is challenging the sufficiency of the evidence, the Court has 21 independently reviewed the state court record. See Jones v. Wood, 114 F.3d 1002, 22 1008 (9th Cir. 1997). Based on this review, the Court adopts the factual 23 24 2 Petitioner was tried with co-defendant Lindsey Richards. Richards conviction was reversed on appeal due to instructional error. (Lodgment 17 at 6-8, 26 14.) 27 3 Petitioner filed six supplemental briefs in the court of appeal. (Lodgment 28 17 at 9.) 25 2 1 discussion of the California Court of Appeal opinion, as a fair and accurate 2 summary of the evidence presented at trial:4 3 Pomona Police Department Officers Reginald Villanueva and 4 Vanessa Munoz were working undercover as part of a narcotics task 5 force on the afternoon of June 27, 2008. . . . They were in an unmarked 6 car in an area of Pomona where narcotics sales and activity had been 7 reported. There were several people on the sidewalk, and Villanueva 8 stopped his car at the curb. Richards, whom Villanueva had never seen 9 before, approached the car window. Villanueva asked for Ken Dog 10 or Bo, but Richards said they were not there. Richards said he would 11 make a phone call to get what Villanueva needed and asked Villanueva 12 to return in two to five minutes. As Villanueva drove away, he saw 13 Richards ride a bicycle to a pay phone. After about five minutes, 14 Villanueva returned to the same location, but left when he did not see 15 Richards. 16 Villanueva testified that when he returned the second time, he saw 17 Richards and Taylor. Villanueva knew Taylor from a prior undercover 18 operation in which Taylor and Ken Dog rode around with Villanueva 19 attempting to find someone selling cocaine. The prior contact ended 20 when their car was pulled over by the team. Before parking at the 21 curb, Villanueva turned on a video camera that was located in the cup 22 23 24 25 26 27 28 4 Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary . . . . Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S. Ct. 1029, 154 L. Ed. 2d 931 (2003) (citing 28 U.S.C. § 2254(e)(1)). Recent Ninth Circuit cases have accorded the factual summary set forth in an opinion of the California Court of Appeal a presumption of correctness pursuant to 28 U.S.C. § 2254(e)(1). See, e.g., Moses v. Payne, 555 F.3d 742, 746 n.1 (9th Cir. 2009) (citations omitted); Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009). 3 1 holder. The camera was pointed toward the front passenger-side 2 window. Richards raised his hand with the palm forward and fingers 3 extended, which Villanueva believed was a signal to wait. Richards and 4 Taylor, who were four to five paces apart, walked up to one another. 5 Villanueva thought Richards handed something to Taylor. Taylor then 6 walked to the passenger side of the officers car. Munoz, who was 7 seated in the front passenger seat, handed Taylor a $20 bill and Taylor 8 handed her an off-white rock that appeared to be rock cocaine. Richards 9 then walked up to the car, leaned in through the front passenger window 10 and asked if everything was all right. Richards shook Villanueva s hand 11 and, as he did so, handed him a second off-white rock. Villanueva 12 admitted that he had testified at the preliminary hearing that Richards 13 handed the rock to Munoz, but said that reviewing the video before trial 14 refreshed his recollection. Richards and Taylor walked away. They 15 were not arrested that day. Chemical analysis subsequently established 16 that both of the rocks contained cocaine base. 17 The video recorded by the camera concealed inside the 18 undercover car was played at trial. We have watched the video, which 19 includes sound. The video does not show the initial contact with 20 Richards. It also does not show Richards signaling Villanueva to stop 21 when the officers returned to the location or Richards handing anything 22 to Taylor. The first event seen on the video is Taylor at the car window. 23 After Villanueva and Munoz greeted Taylor, Taylor asked, You want 24 a dub? which Villanueva testified meant $20 worth of cocaine. Both 25 officers said, Yeah. Taylor then pointed at Villanueva as he said, 26 Tony, as if recognizing him. Villanueva replied, Yeah. Taylor 27 asked, Where s your car at? Villanueva said, This is my girl s car. 28 Taylor then asked, [D]id they follow you or anything? Villanueva 4 1 said, No. Taylor said, They let me go, then recounted police 2 checking his records and releasing him because he had been discharged 3 from parole. He added, I m clean no warrants, no probation, no parole. 4 And I want to stay that way. You know. Villanueva said that was 5 cool, then asked, Is he going to hook me up or what? Taylor 6 replied, I got it. Right here. Villanueva asked, Oh, he gave it to 7 you? Taylor said, Yeah, followed by something indecipherable. 8 Munoz handed money to Taylor and Taylor placed the rock in Munoz s 9 outstretched palm. Taylor asked for a hit. Villanueva refused, saying 10 they were about to take off. Taylor said, You can break me a hit. 11 Villanueva told Taylor to [b]reak it. Taylor said, He ain t going to 12 give me shit. Munoz and Villanueva repeatedly urged Taylor to break 13 off a piece. Taylor took the rock from Munoz s palm, which was still 14 outstretched, pinched off a piece, and handed the rest back to Munoz. 15 He then asked if the piece he had broken was too big. Munoz looked at 16 it and said, No, you re cool. Taylor said, Cause, yeah, they have to 17 get, you know, they have to get to know you. You know, I sort of got 18 to know you, you know. He continued, But I know you now, I ll see 19 you in the future, you know. Taylor asked if they were coming back 20 later, and Villanueva said he would. A second or so later, Richards 21 leaned in the car window and asked, You alright? Villanueva said, 22 Yeah, and asked Richards s name. 23 Villanueva said, Z. Tony. During the introductions, Richards first 24 bumped fists with Villanueva, then shook Villanueva s hand. 25 Villanueva said, Ah, for real. Alright, Z. Munoz said, Thank you, 26 man. Although it is possible that Richards transferred something to 27 Villanueva during the handshake, no transfer is visible on the video, and 28 Villanueva does not display any item received from Richards on the 5 Richards replied, Z, and 1 video. 2 Richards testified that as of June 27, he had been homeless and 3 living on the streets or in a tent city in Pomona or Ontario and for 4 about nine years. 5 occasionally helped street-level drug dealers sell drugs in exchange for 6 a little money or cocaine for his own consumption. Sometimes he would 7 sell a friend a small piece of the cocaine he was going to use. On 8 cross-examination he estimated he had sold drugs between five and 10 9 times. He was a long-time cocaine abuser and had 10 Richards testified that on June 27 Villanueva pulled to the curb 11 near him and asked if he knew Ken Dog or Bo. Richards knew of a man 12 called Bo who sold drugs. Richards said that if he saw Bo, he would 13 send him toward Villanueva. Richards denied telling Villanueva that he 14 would make a phone call to get what Villanueva needed and explained 15 that he would have no way of knowing which of the several different 16 types of drugs sold in the area Villanueva wanted. Richards rode off on 17 his bicycle to buy a sandwich. About 45 minutes or an hour later, 18 Richards was riding back through the area where he had met Villanueva. 19 It was a grassy, shaded area where homeless people often gathered. 20 Richards saw Taylor, whom he knew from the streets, and two other 21 men sitting there. Richards stopped to talk to them. As the officers car 22 approached, Richards told the men that he thought these people are 23 looking for somebody. They were looking for Bo and some guy named 24 Ken Dog. . . . [T]hey might be looking for something. 25 Richards testified that when the officers car stopped at the curb, 26 he made the hand gesture Villanueva described to signal them to wait. 27 He then told Taylor and the other two men, I think these people are 28 looking for something, . . . but, personally, I don t trust them. Taylor 6 1 walked up to the officers car. Richards did not know what Taylor was 2 going to do, did not know whether Taylor had drugs to sell, and did not 3 hand anything to Taylor. Richards could neither hear the conversation 4 between Taylor and the officers nor see what happened in the car, but he 5 was almost positive something took place there, and he thought the 6 officers might give him two or three dollars if they thought he had 7 facilitated the transaction, so he went up to the car. Villanueva asked 8 Richards his name. Richards responded, Z, then shook Villanueva s 9 hand because a handshake customarily follows an introduction. 10 Richards denied handing anything to either officer. Richards explained 11 that he had been a drug addict for more than 25 years and would rather 12 have drugs than . . . food. Under no circumstances would he give 13 away drugs, though he sometimes allowed people, including Taylor, to 14 have a hit off of his pipe. 15 Richards admitted he had been convicted of selling drugs in 2004 16 based on two $20 sales of drugs to the same undercover police officer 17 over a two-day period. 18 19 Taylor represented himself through most of the pretrial proceedings and at trial. He presented no defense. 20 (Lodgment 17 at 2-6.) 21 IV. 22 PETITIONER S CLAIMS 23 Petitioner raises the following claims for habeas corpus relief: 24 (1) The trial court deprived Petitioner of due process and right to a fair 25 trial when it refused to allow him to present a defense of entrapment 26 ( Claim One ) (Pet. Attach. at 7-10); 27 28 (2) The trial court deprived Petitioner of due process and his right to a fair trial by departing from an agreed-upon jury instruction regarding 7 1 2 entrapment ( Claim Two ) (id. at 11-14); (3) The trial court denied Petitioner his right to confront and cross- 3 examine two police officers, whose testimony was relevant to 4 Petitioner s innocence ( Claim Three ) (id. at 15-17a);5 5 (4) The criminalist and prosecutor destroyed evidence by using all of the 6 alleged rock in the testing process, and failed to submit a chemical 7 analysis/toxicology report at the preliminary hearing, violating 8 Petitioner s right to due process and a fair trial ( Claim Four ) (id. at 9 17b-19); and 10 (5) The prosecutor failed to prove that the drug contained cocaine base, 11 and, therefore, the evidence is insufficient to support the guilty 12 verdict ( Claim Five ) (id. at 20-25). 13 V. 14 STANDARD OF REVIEW 15 The standard of review applicable to Petitioner s claims is set forth in 28 16 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act 17 of 1996 ( AEDPA ): 18 (d) An application for a writ of habeas corpus on behalf of a person 19 in custody pursuant to the judgment of a State court shall not be 20 granted with respect to any claim that was adjudicated on the 21 merits in State court proceedings unless the adjudication of the 22 claim-- 23 (1) resulted in a decision that was contrary to, or 24 involved an unreasonable application of, clearly 25 established Federal law, as determined by the 26 27 5 There are two pages numbered 17. Therefore, the Court will refer to the 28 first as 17a and the second as 17b. 8 1 2 Supreme Court of the United States; or (2) resulted in a decision that was based on an 3 unreasonable determination of the facts in light of 4 the evidence presented in the State court proceeding. 5 28 U.S.C. § 2254(d). If these standards are difficult to meet, it is because they 6 were meant to be. Harrington v. Richter, 131 S. Ct. 770, 786, 178 L. Ed. 2d 624 7 (2011). AEDPA stops short of imposing a complete bar on federal court 8 relitigation of claims already rejected in state proceedings[,] and a writ may issue 9 only where there is no possibility fairminded jurists could disagree that the state 10 court s decision conflicts with United States Supreme Court precedent. Id. 11 Further, a state court factual determination shall be presumed correct unless 12 rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). 13 Under the AEDPA, the clearly established Federal law that controls 14 federal habeas review of state court decisions consists of holdings (as opposed to 15 dicta) of Supreme Court decisions as of the time of the relevant state-court 16 decision. Williams v. Taylor, 529 U.S. 362, 412, 120 S. Ct. 1495, 146 L. Ed. 2d 17 389 (2000). To determine what, if any, clearly established United States 18 Supreme Court law exists, the court may examine decisions other than those of the 19 United States Supreme Court. LaJoie v. Thompson, 217 F.3d 663, 669 n.6 (9th 20 Cir. 2000). Ninth Circuit cases may be persuasive. Duhaime v. Ducharme, 200 21 F.3d 597, 600 (9th Cir. 1999). On the other hand, a state court s decision cannot 22 be contrary to, or an unreasonable application of, clearly established federal law, if 23 no Supreme Court precedent creates clearly established federal law relating to the 24 legal issue the habeas petitioner raised in state court. Brewer v. Hall, 378 F.3d 25 952, 955 (9th Cir. 2004); see also Carey v. Musladin, 549 U.S. 70, 77, 127 S. Ct. 26 649, 166 L. Ed. 2d 482 (2006) (in the absence of a Supreme Court holding 27 regarding the prejudicial effect of spectators courtroom conduct, the state court s 28 decision could not have been contrary to or an unreasonable application of clearly 9 1 established federal law). 2 Although a particular state court decision may be both contrary to and an 3 unreasonable application of controlling Supreme Court law, the two phrases 4 have distinct meanings. Williams, 529 U.S. at 405. A state court decision is 5 contrary to clearly established federal law if the decision either applies a rule 6 that contradicts the governing Supreme Court law, or reaches a result that differs 7 from the result the Supreme Court reached on materially indistinguishable facts. 8 Early v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 154 L. Ed. 2d 263 (2002) (per 9 curiam) (citing Williams, 529 U.S. at 405-06). When a state court decision 10 adjudicating a claim is contrary to controlling Supreme Court precedent, the 11 reviewing federal habeas court is unconstrained by § 2254(d)(1). Williams, 529 12 U.S. at 406. However, the state court need not cite or even be aware of the 13 controlling Supreme Court cases, so long as neither the reasoning nor the result 14 of the state-court decision contradicts them. Packer, 537 U.S. at 8. 15 State court decisions that are not contrary to Supreme Court law may only 16 be set aside on federal habeas review if they are not merely erroneous, but an 17 unreasonable application of clearly established federal law, or based on an 18 unreasonable determination of the facts. Id. at 11 (citing 28 U.S.C. § 2254(d)). 19 Consequently, a state court decision that correctly identified the governing legal 20 rule may be rejected if it unreasonably applied the rule to the facts of a particular 21 case. See Williams, 529 U.S. at 406-10, 413 (e.g., the rejected decision may state 22 Strickland rule correctly but apply it unreasonably); Woodford v. Visciotti, 537 23 U.S. 19, 24-25, 123 S. Ct. 357, 154 L. Ed. 2d 279 (2002) (per curiam). However, 24 to obtain federal habeas relief for such an unreasonable application, a petitioner 25 must show that the state court s application of Supreme Court law was 26 objectively unreasonable. Visciotti, 537 U.S. at 27. An unreasonable 27 application is different from an erroneous or incorrect one. Williams, 529 U.S. at 28 409-10; see also Visciotti, 537 U.S. at 25. 10 1 Where, as here, the California Supreme Court denies a petitioner s claims 2 without comment, the state high court s silent denial is considered to be on the 3 merits and to rest on the last reasoned decision on these claims, in this case, the 4 grounds articulated by the California Court of Appeal in its decision. See Ylst v. 5 Nunnemaker, 501 U.S. 797, 803-06, 111 S. Ct. 2590, 115 L. Ed. 2d 706 (1991); 6 Hunter v. Aispuro, 982 F.2d 344, 347-48 (9th Cir. 1992); see also Kennedy v. 7 Lockyer, 379 F.3d 1041, 1052 (9th Cir. 2004); Gill v. Ayers, 342 F.3d 911, 917 8 n.5 (9th Cir. 2003). 9 VI. 10 DISCUSSION 11 A. Habeas Relief Is Not Warranted on Petitioner s Claim That the Trial 12 Court Violated His Constitutional Rights When It Prevented Him from 13 Presenting an Entrapment Defense. 14 1. 15 At the trial readiness hearing and after the prosecutor showed the police Background. 16 video in court, Petitioner told the judge he wanted to present an affirmative 17 defense of entrapment. (Pet. Attach. at 8.) The trial judge told Petitioner [t]hat s 18 fine, and [w]e ll see you on Friday. ) (Id. (quoting Reporter s Transcript ( RT ) 19 at E3, E10-E12).) Petitioner contends that this constituted approval for Petitioner 20 to proceed to trial using that defense. (Id.) During jury selection, Petitioner 21 questioned the jury on entrapment. (1st Aug. RT at 56-61.) The judge read the 22 instruction on entrapment to the jury at that time. (Id.) 23 In Claim One, Petitioner claims that although prior to trial the court found 24 there was evidence of entrapment, during trial he was prevented from preparing 25 and presenting an entrapment defense, thereby violating his rights to a fair trial 26 and due process. (Pet. Attach. at 7-10.) In Claim Two, he contends that his rights 27 to due process and a fair trial were violated because the trial court refused to re28 instruct the jury on entrapment and precluded him from arguing the defense to the 11 1 jury. (Id. at 11-14.) 2 2. 3 The California Court of Appeal rejected this claim: 4 [Taylor] argues that the evidence established entrapment based upon the 5 conduct of Villanueva and Munoz, and the trial court erred by refusing 6 to instruct the jury on entrapment and refusing to let him argue 7 entrapment, even though it had found that there was evidence of 8 entrapment before trial began and certified the issue of entrapment to 9 the jury by reading a jury instruction during voir dire that defined 10 entrapment. The trial court did not find that there was evidence of 11 entrapment, before or after the presentation of evidence. It defined 12 entrapment for the jury during voir dire because Taylor was asking 13 questions of potential jurors about their attitude toward an entrapment 14 defense. 15 instruction in the charge to sitting jurors unless there was substantial 16 evidence of entrapment. 17 presented at trial. Taylor approached the officers car and asked if they 18 wanted to buy a dub as soon as they said hello to him. The officers 19 did not entice or pressure Taylor into doing anything. Neither the 20 officers acceptance of Taylor s offer to sell them a dub nor 21 Villanueva s subsequent question about whether the transaction was 22 going to be completed constituted conduct likely to induce a normally 23 law-abiding person to commit the offense. In his second supplemental 24 brief, Taylor argues that he was enticed into participating in the 25 transaction by repeated [sic] and insistant [sic] requests and offering of 26 extraordinary benefit, (cocaine), and payment in drugs. The record 27 belies this contention. After the drug sale was completed, Taylor asked 28 the officers if he could have a hit. Villanueva refused. Taylor California Court Opinions: The court was not required to include an entrapment There was no evidence of entrapment 12 1 insisted, You can break me a hit. Villanueva responded, Break it 2 then, and Munoz joined, saying, Go ahead and break it, man. The 3 officers acquiescence to Taylor s repeated requests for part of the rock 4 he had just sold them does not constitute entrapment. Taylor also argues 5 that he was entrapped because the police did not seize the buy money 6 from him, the police let him go after detaining him, and Munoz and 7 Villanueva did not dispose of the contraband in the manner prescribed 8 by law, and they thus committed outrageous conduct. None of 9 these acts would show entrapment, and there was no evidence at trial on 10 any of these points other than testimony by Villanueva that neither 11 Richards nor Taylor was arrested on June 27. Because there was no 12 evidence of entrapment, the trial court did not err by prohibiting Taylor 13 from arguing the theory to the jury. 14 (Lodgment 17 at 9-10 (citations omitted).) 15 3. 16 Respondent contends that Claim One and the failure to instruct aspect of State Law Error. 17 Claim Two fail to allege federal questions. (Answer at 7-10.) This Court agrees. 18 On habeas corpus review, a federal court is limited to deciding whether a 19 conviction violated the Constitution, laws, or treaties of the United States. Estelle 20 v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991) (noting 21 that it is not the province of a federal habeas court to reexamine state-court 22 determinations on state-law questions. ). To the extent Petitioner claims that the 23 trial court violated his rights under state law, the claim is not cognizable on federal 24 habeas review. Id. Thus, this Court limits its consideration to the alleged federal 25 constitutional violations. 26 Moreover, the entrapment defense is not of a constitutional dimension. 27 United States v. Russell, 411 U.S. 423, 430-33, 93 S. Ct. 1637, 36 L. Ed. 2d 366 28 (1973). It is a court-created limitation on governmental activity. United States v. 13 1 Emmert, 829 F.2d 805, 808 n.1 (9th Cir. 1987). Accordingly, an alleged 2 misapplication of law relating to entrapment does not raise a cognizable federal 3 constitutional claim. Noble v. Harrison, 491 F. Supp. 2d 950, 961 n.7 (C.D. 4 Cal.2007) (citing Benson v. Carter, 396 F.2d 319, 322 (9th Cir. 1968)). As such, 5 Claim One is not cognizable on federal habeas review. 6 With respect to the failure to instruct aspect of Claim Two, claims of error 7 in state jury instructions are generally a matter of state law and do not usually 8 invoke a constitutional question. Gilmore v. Taylor, 508 U.S. 333, 342-343, 113 9 S. Ct. 2112, 124 L. Ed. 2d 306 (1993). Claims that merely challenge the 10 correctness of jury instructions under state law cannot reasonably be construed to 11 allege a deprivation of federal rights. Van Pilon v. Reed, 799 F.2d 1332, 1342 12 (9th Cir. 1986); see also Menendez v. Terhune, 422 F.3d 1012, 1029 (9th Cir. 13 2005) ( Any error in the state court s determination of whether state law allowed 14 for an instruction . . . cannot form the basis for federal habeas relief. ); Dunckhurst 15 v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988) (an instructional error does not alone 16 raise a ground cognizable in a federal habeas corpus proceeding. ). Thus, to the 17 extent Petitioner contends that the failure to give the jury instruction on 18 entrapment violated state law, such a claim is not cognizable on federal habeas 19 review. 20 4. 21 Respondent contends that the instructional aspect of Claim Two is barred by Teague Bars Petitioner s Claims. 22 Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989).6 23 24 6 The Ninth Circuit has held that, in order to assert a Teague claim, at a 25 minimum: (1) Teague should be identified as an issue, indeed the first issue; (2) 26 the new rule of constitutional law that falls within its proscription should be articulated; (3) the reasons why such a rule would not have been compelled by 27 existing precedent should be explained with particular reference to the appropriate 28 (continued...) 14 1 (Answer at 10-14.) 2 In Teague, the Supreme Court held that a new rule of constitutional law 3 cannot be applied retroactively on federal collateral review to upset a state 4 conviction or sentence unless the new rule forbids criminal punishment of 5 primary, individual conduct or is a watershed rule of criminal procedure. 6 Caspari v. Bohlen, 510 U.S. 383, 396, 114 S. Ct. 948, 127 L. Ed. 2d 236 (1994). 7 The Supreme Court has made it clear that federal habeas courts must decide at the 8 outset whether Teague is implicated if the state argues that the petitioner seeks the 9 benefit of a new rule. Id. at 389. This is true regardless of whether the case is 10 governed by AEDPA. Horn v. Banks, 536 U.S. 266, 272, 122 S. Ct. 2147, 153 L. 11 Ed. 2d 301 (2002). 12 Respondent claims that Teague bars relief because there was no existing 13 precedent at the time Petitioner s conviction became final, that the right to present 14 a defense in a criminal trial includes the right to have a jury instructed on 15 affirmative defenses. (Answer at 11-12.) The Court agrees. 16 Respondent cites to the case of Gilmore v. Taylor, 508 U.S. 333, 343-44, 17 113 S. Ct. 2112, 124 L. Ed. 2d 306 (1993), for the proposition that the right to 18 present a defense applies to evidence and witnesses, but not to instructions. 19 (Answer at 11-12.) In Gilmore, the Supreme Court found that Teague precluded 20 relief in a case where the prisoner argued that the right to present a defense 21 included the right to have the jury consider it, and that confusing jury instructions 22 which prevented a jury from considering an affirmative defense, violate due 23 process. Gilmore, 508 U.S. at 343-44; see also Turner v. Marshall, 63 F.3d 807, 24 819 (9th Cir. 1995), overruled on other grounds by Tolbert v. Page, 182 F.3d 677 25 6 (...continued) universe of precedent; and (4) an argument should be made why the rule 27 contended for is not within one of Teague s exceptions. Arredondo v. Ortiz, 365 28 F.3d 778, 781-82 (9th Cir. 2004). 26 15 1 (9th Cir. 1999), (noting that [w]ith the intercircuit split on whether the lack of a 2 lesser included offense instruction in a noncapital case presents constitutional 3 error, any finding of constitutional error would create a new rule, inapplicable to 4 the present case under Teague. ); Tirado v. Warden, 576 F. Supp. 2d 1104, 1110 5 (C.D. Cal. 2008) (Teague barred relief as to habeas petitioner s claim of jury 6 instructional error regarding affirmative defense of good faith belief in consent in 7 prosecution for forcible sexual offense). 8 Based on the foregoing authority, the Court agrees with Respondent that 9 Teague is applicable to Petitioner s claims and that no exceptions apply. (Answer 10 at 13-14.) Thus, habeas relief is unavailable on the instructional aspect of Claim 11 Two because it would require the Court to apply a new rule of law in a habeas 12 case. Turner, 63 F.3d at 818-19. 13 5. 14 Even assuming that Petitioner s claims are cognizable or that Teague does Analysis. 15 not apply, Petitioner s claims fail on the merits. 16 With regard to an entrapment defense, due process may be violated when 17 the government s conduct is so outrageous that due process principles would 18 absolutely bar the government from invoking judicial processes to obtain a 19 conviction. United States v. Russell, 411 U.S. 423, 431-32, 93 S. Ct. 1637, 36 L. 20 Ed. 2d 366 (1973); United States v. King, 200 F.3d 1207, 1213 (9th Cir. 1999). 21 The standard for establishing outrageous conduct is extremely high. United States 22 v. McClelland, 72 F.3d 717, 721 (9th Cir. 1995). Such outrageous conduct occurs 23 only when the government completely fabricat[es] the crime solely to secure the 24 defendant s conviction, or [ ] us[es] excessive physical or mental coercion. Id. 25 (internal quotations omitted); Emmert, 829 F.2d at 811. In this case, there is no 26 evidence the police engaged in outrageous conduct. 27 Moreover, Petitioner did not establish the entrapment defense as a matter of 28 California or federal law. Under California law, the test for determining 16 1 entrapment is whether the acts of the law enforcement agent are likely to induce a 2 normally law-abiding person to commit the offense. People v. Barraza, 23 Cal. 3 3d 675, 689-90 (1979). Although the test focuses primarily on the conduct of the 4 law enforcement agent, it also requires consideration of the effect that the conduct 5 would have on a normally law-abiding person under the circumstances presented. 6 Id. at 690. The test is objective rather than subjective and thus the suspect s 7 character, predisposition to commit the offense, and subjective intent in 8 committing the crime are irrelevant. Id. at 690-91. 9 Here, the police conduct was not extraordinary. The police merely provided 10 Petitioner with the opportunity to commit the crimes charged. There is no 11 indication that the police conduct was physically or psychologically coercive. 12 Moreover, the testimony established that Petitioner approached the officers car 13 and asked if they wanted to buy a dub as soon as they said hello to him. (RT at 14 637-38, 648-49, 664-65, 676-77.) Then, Petitioner handed Officer Munoz a piece 15 of rock cocaine in exchange for a $20 bill. (Id. at 638-39.) After the exchange, 16 Petitioner asked for a hit, and, after initially refusing, the officers told Petitioner 17 he could break off a piece of the rock. (Id. at 677-78.) The jury saw a videotape 18 of the transaction. (Id. at 646-47.) Petitioner did not testify and did not present an 19 affirmative defense.7 Neither Petitioner or co-defendant, nor the prosecution, 20 21 7 On cross-examination, after reading from the transcript of the video 22 recording the colloquy between himself and the officers in which Petitioner asked 23 for a hit of the cocaine he had just sold the officers, Petitioner then asked Officer 24 Villaneuva why he continue[d] to insist that I [Petitioner] give you that other rock. (RT at 676-78.) It is clear from the transcript that it was Petitioner who 25 was insisting he wanted a hit and that the officers initially refused but then told 26 him he could break off a piece. (Id.) He also established that after he handed the rock to Officer Munoz, she handed it back to him so that he could break off a 27 piece. (Id.) There is nothing in this testimony to show Petitioner was induced to 28 (continued...) 17 1 presented any evidence establishing entrapment. Thus, Petitioner s claim of 2 entrapment as a matter of California law fails. 3 Under federal law, the entrapment defense has two elements: government 4 inducement of the crime and absence of predisposition on the part of the 5 defendant. United States v. Sandoval-Mendoza, 472 F.3d 645, 648 (9th Cir. 2006) 6 (quoting United States v. Skarie, 971 F.2d 317, 320 (9th Cir. 1992)). Inducement 7 is any government conduct creating a substantial risk that an otherwise 8 law-abiding citizen would commit an offense. Id. (internal quotation marks 9 omitted) (citation omitted). Where the government has induced a defendant to 10 break the law, the prosecution must prove beyond a reasonable doubt that the 11 defendant was predisposed to commit the criminal act. See Jacobson v. United 12 States, 503 U.S. 540, 548-49, 112 S. Ct. 1535, 118 L. Ed. 2d 174 (1992). When 13 assessing entrapment, the Court considers five factors: (1) the character of the 14 defendant, (2) who first suggested the criminal activity, (3) whether the defendant 15 engaged in the activity for profit, (4) whether the defendant demonstrated 16 reluctance, and (5) the nature of the government s inducement. United States v. 17 Citro, 842 F.2d 1149, 1152 (9th Cir. 1988). The extent of the defendant s 18 reluctance is the most important factor. Id. 19 In this case, Petitioner has failed to demonstrate that he was in any way 20 induced to commit the criminal act. Although they provided Petitioner with the 21 opportunity to break the law, the police did not coerce or pressure Petitioner to sell 22 them rock cocaine. Nor did Petitioner show any reluctance to sell the officers the 23 rock cocaine. As there was no evidence presented to demonstrate that the officers 24 induced Petitioner to commit the crime, Petitioner s entrapment defense was 25 properly rejected. 26 27 7 (...continued) 28 sell cocaine to the officers. 18 1 Moreover, the trial court did not preclude Petitioner from presenting 2 evidence of entrapment. In fact, when Petitioner told the court he wanted to 3 present that defense, the court said That s fine, but also informed Petitioner that 4 by entering the entrapment defense . . . you are admitting that you did [it]. (RT 5 at E10-12.) The court also defined entrapment for the jury panel during voir dire 6 after Petitioner began discussing the concept. (1st Aug. RT at 56-59.) During 7 opening statements, Petitioner told the jury he was going to present a defense of 8 entrapment based on the actions of the officers. (RT at 631-32.) Specifically, he 9 stated, without objection, that the police officers paid him in order to get him to 10 do something. (Id. at 632.) Thus, there is no evidence the court precluded 11 Petitioner from presenting such a defense it is just that during trial, Petitioner did 12 not present one. 13 With regard to the trial court s refusal to provide a jury instruction on 14 entrapment, in order to warrant federal habeas relief, the omission of a jury 15 instruction must violate some due process right guaranteed by the Fourteenth 16 Amendment. Cupp v. Naughten, 414 U.S. 141, 146, 94 S. Ct. 396, 38 L. Ed. 2d 17 368 (1973) (standard for issuance of challenged instruction); Murtishaw v. 18 Woodford, 255 F.3d 926, 971 (9th Cir. 2001) (Cupp standard applies to omitted 19 instructions). In challenging the failure to give an instruction, a habeas petitioner 20 faces an especially heavy burden. Henderson v. Kibbe, 431 U.S. 145, 155, 97 S. 21 Ct. 1730, 52 L. Ed. 2d 203 (1977); Villafuerte v. Stewart, 111 F.3d 616, 624 (9th 22 Cir. 1997). However, the Ninth Circuit has held that the failure to instruct on a 23 theory of defense may constitute a violation of due process by depriving the 24 defendant of the right to present his case where the defendant has presented 25 substantial evidence to support that defense. Bradley v. Duncan, 315 F.3d 1091, 26 1098-1100 (9th Cir. 2002); Solis v. Garcia, 219 F.3d 922, 929 (9th Cir. 2000). 27 In this case, however, because there was no entrapment evidence presented 28 to the jury, there was nothing to warrant a jury instruction on that defense, or any 19 1 reason to allow Petitioner to argue entrapment to the jury. (See, e.g., id. at 905-07, 2 945-49.) Accordingly, the trial court did not violate Petitioner s rights to due 3 process and a fair trial by refusing to instruct the jury regarding the entrapment 4 defense, or by prohibiting Petitioner from discussing entrapment in his closing 5 argument. 6 In sum, Petitioner s entrapment claims are not cognizable on federal habeas 7 review. Moreover, the police conduct was not outrageous and did not violate due 8 process. Finally, even if Petitioner s claims were cognizable, no evidence of 9 entrapment was presented to the jury and, therefore, he did not establish the 10 entrapment defense as a matter of California or federal law. Accordingly, habeas 11 relief is not warranted on Claims One and Two. 12 B. Habeas Relief Is Not Warranted on Petitioner s Claim That He Was 13 Denied His Right to Confront and Cross-Examine Witnesses. 14 1. 15 Petitioner contends that his rights to confront witnesses, to a fair trial, and to Background. 16 present a defense were violated because the prosecutor rested without calling 17 Officer Munoz or Sergeant Congolton to testify, thereby preventing Petitioner 18 from cross-examining them. (Pet. Attach. at 15-17a.) 19 Specifically, Officer Munoz was one of the undercover officers involved in 20 the drug transaction. She did not testify at the preliminary hearing but was on the 21 People s witness list and appeared in court the day set for trial. (Pet. Ex. C; RT at 22 302.) The prosecutor did not call her to testify, nor did Petitioner or counsel for 23 co-defendant Richards. Sergeant Congolton was one of the officers who briefly 24 detained Petitioner and Richards after the drug transaction. (CT at 23, 26; 2d Aug. 25 CT at 4.) He also did not testify at the preliminary hearing. Although he was on 26 the People s witness list (Pet. Ex. C), he was not called as a witness at trial by the 27 prosecution, Petitioner, or counsel for co-defendant Richards. 28 20 1 2. 2 The California Court of Appeal rejected this claim: California Court Opinions. 3 Taylor argues that his confrontation and due process rights were 4 violated because the prosecutor did not call Munoz or Sergeant 5 Congolton to testify. Taylor should have called these witnesses if he 6 wanted their testimony; the prosecutor s decision not to call them did 7 not violate Taylor s rights. 8 9 10 (Lodgment 17 at 10.) 3. Analysis. Whether rooted directly in the Due Process Clause of the Fourteenth 11 Amendment . . . or in the Compulsory Process or Confrontation clauses of the 12 Sixth Amendment, . . . the Constitution guarantees criminal defendants a 13 meaningful opportunity to present a complete defense. Crane v. Kentucky, 476 14 U.S. 683, 690 106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986); Moses v. Payne, 555 F.3d 15 742, 757 (9th Cir. 2009). The Supreme Court has explained the importance of 16 these rights: 17 The right to offer the testimony of witnesses, and to compel their 18 attendance, if necessary, is in plain terms the right to present a defense, 19 the right to present the defendant s version of the facts as well as the 20 prosecution s to the jury so it may decide where the truth lies. Just as an 21 accused has the right to confront the prosecution s witnesses for the 22 purpose of challenging their testimony, he has the right to present his 23 own witnesses to establish a defense. This right is a fundamental 24 element of due process of law. 25 Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967)). 26 The prosecution s failure to call a particular witness does not violate a petitioner s 27 right of confrontation. Cooper v. California, 386 U.S. 58, 62 n.2, 87 S. Ct. 788, 17 28 L. Ed. 2d 730 (1967) (rejecting as absolutely devoid of merit, petitioner s 21 1 contention that the prosecution s failure to produce a particular witness violated 2 the petitioner s right of confrontation). 3 Petitioner has presented no evidence, and the Court finds no evidence in the 4 record, that these witnesses were unavailable or that Petitioner was in any way 5 prevented from calling these witnesses at trial. In fact, after co-defendant 6 Richards testified on his own behalf, Petitioner rested without calling any 7 witnesses. (RT at 754-55.) 8 Based on the foregoing, the Court finds that the California court s rejection 9 of Petitioner s claim was neither contrary to, nor involved an unreasonable 10 application of, clearly established federal law, as determined by the United States 11 Supreme Court. Thus, habeas relief is not warranted on this claim. 12 C. Habeas Relief Is Not Warranted on Petitioner s Claim Regarding the 13 Alleged Destruction of Evidence. 14 1. 15 Petitioner contends that the failure to preserve the remaining rock cocaine, Background. 16 to admit the chemical analysis or toxicology reports into evidence at the 17 preliminary hearing, and to call Tom McCleary, a forensic chemist, to testify at the 18 preliminary hearing, violated his rights to due process and a fair trial. (Pet. Attach. 19 at 17b-19.) 20 2. 21 The California Court of Appeal denied Petitioner s claim: California Court Opinions. 22 Taylor also makes numerous claims regarding the testing and 23 analysis of the cocaine rock he sold to the officers. First, he argues that 24 the prosecutor failed to introduce evidence at the preliminary hearing 25 and at trial that the rock contained cocaine base, resulting in insufficient 26 evidence in both proceedings. Taylor is wrong. At the preliminary 27 hearing, the attorneys representing Taylor and Richards stipulated that 28 Tom McCleary would be deemed to have been duly called, sworn, 22 1 testified as an expert forensic chemist, and that Tom McCleary did a 2 chemical and physical analysis of the item booked under file No. 3 0897156, with a lab receipt number of K007651, under the subject name 4 of Taylor, first name is Larry, and came to the expert conclusion and 5 opinion that that item had a net weight of approximately .12 grams of 6 solid substance containing cocaine in the base form. At trial, McCleary 7 testified that he tested the item booked by the Pomona Police 8 Department under file number 0897156, with a lab receipt number of 9 K007651 and suspect name of Larry Taylor and found it to contain 10 approximately 0.12 grams of a solid substance containing cocaine in 11 the base form. Taylor also argues that prior to trial the prosecutor 12 served him with a laboratory report that was similar to the 13 stipulation at the preliminary hearing, but the prosecutor did not 14 introduce the laboratory report at trial. 15 misunderstanding of terms. The minute order and the portion of the 16 reporter s transcript cited by Taylor in support of his claim that he was 17 served with a laboratory report use the phrase lab receipt. During 18 cross-examination at trial by Taylor, McCleary clarified that the lab 19 receipt was his chemical analysis report. A photocopy of the lab 20 receipt was admitted as part of People s exhibit 1 at trial, and McCleary 21 identified it as a copy of his lab receipt. This seems to be a 22 Next, Taylor argues that the criminalist and the prosecutor 23 destroyed evidence by using all of the alleged rock in the testing 24 process. Although Taylor repeatedly made this assertion in his motions 25 and arguments to the trial court, nothing in the record supports his claim 26 that the rock was destroyed. Indeed, McCleary testified at trial that after 27 he conducted his testing, the rock was smaller because he consumed 28 some of the material during the testing. The loss of some mass is not 23 1 equivalent to complete destruction. Taylor argues in his fifth 2 supplemental brief that the prosecutor explained at the preliminary 3 hearing that the cocaine rock was used up in the testing process. No 4 such statement appears in the transcript of the preliminary hearing or 5 anywhere else in the record, except in Taylor s motions. Taylor also 6 argues the prosecutor showed bad faith by failing to request and submit 7 the toxicology report to the defense and the court, or to to [sic] stipulate 8 that the drug test report was inconclusive as to item No. 1 containing 9 cocaine base. The record does not support Taylor s assertions that 10 testing was inconclusive or that a toxicology report existed. To the 11 extent that Taylor is referring to the printout of the infrared spectroscopy 12 that McCleary testified was one of the tests he used in reaching his 13 conclusion that the rock contained cocaine base, Taylor fails to show 14 how he was prejudiced by the failure to receive the printout, but merely 15 wondered if McCleary s testimony was reliable. Taylor also complains 16 of the reliability of a NIK field test apparently used by one of the 17 police officers to test the rock before submitting it to McCleary for 18 analysis. This is irrelevant as the prosecution did not rely upon the 19 results of a field test to establish the composition of the rock. Taylor 20 also argues that, in the absence of the toxicology report, McCleary s 21 testimony was an inadmissible opinion based upon a hypothetical state 22 of facts not supported by the evidence. McCleary testified to his actual 23 scientific testing of the rock, not an opinion based upon a hypothetical. 24 (Lodgment 17 at 10-12.) 25 26 27 3. Analysis. a. Failure to Preserve. Petitioner contends that the failure to preserve the remaining rock cocaine 28 after testing violated his rights to due process and a fair trial. 24 1 There is no indication in the record that the cocaine was destroyed.8 At 2 trial, McCleary testified that he had received a .12 gram rock of cocaine from the 3 police department and that it weighed .02 gram less than indicated in the police 4 report probably due to the department s initial testing of the rock. (RT at 689.) 5 He also testified that after his testing, it would have been smaller. (Id.) Even if 6 the cocaine had lost some mass after testing, Petitioner does not state how this was 7 prejudicial to his trial. Thus, habeas relief is not warranted on this claim. 8 b. 9 10 Failure to Admit Testimony and Reports of Forensic Chemist at Preliminary Hearing. Petitioner contends that the failure to admit testimony and reports of the 11 forensic chemist, McCleary, at the preliminary hearing, violated his rights to due 12 process and a fair trial. He contends that these failures amounted to a destruction 13 of evidence. (Pet. Attach. at 19.) 14 Specifically, at the preliminary hearing, the prosecutor and defense counsel, 15 including then-counsel for Petitioner,9 entered into the following stipulation: 16 [Prosecutor]: Counsel, may it be stipulated that Tom McCleary 17 be deemed to have been duly called, sworn, testified as an expert 18 forensic chemist, and that Tom McCleary did a chemical and physical 19 analysis of the item booked under file No. 0897156, with a lab receipt 20 number of K007651, under the subject name of Taylor, first name is 21 22 8 The Court notes that Exhibit 1 at trial contained a photograph of the rock 23 cocaine handed to Officer Munoz by Petitioner. (Pet. Attach. at 21; see also, e.g., 24 RT at 638.) Exhibit 2 was a photograph of the rock cocaine handed to Officer 25 Villaneuva by co-defendant Richards. (RT at 641.) The Court can find nothing in the record to indicate whether any cocaine remaining after testing was still in the 26 possession of the police department. 27 9 As noted by the court of appeal, Petitioner represented himself at trial. 28 (Lodgment 17 at 5.) 25 1 Larry, and came to the expert conclusion and opinion that that item had 2 a net weight of approximately .12 grams of solid substance containing 3 cocaine in the base form? 4 5 [Counsel for Petitioner]: For the purpose of preliminary hearing, so stipulated. 6 .... 7 [Counsel for Richards]: For prelim only, so stipulated. 8 (CT at 30.) 9 Again, Petitioner fails to show how he was prejudiced by this stipulation in 10 lieu of having McCleary testify to the same thing in person at the preliminary 11 hearing.10 12 Petitioner appears to be contending that because McCleary did not submit 13 his spectrum printout or handwritten notes at the preliminary hearing or the trial, 14 the prosecutor had misled the court and the defense about providing Petitioner 15 with these two documents: 16 McCleary then testified that he did not submit his spectrum 17 printout, (toxicology report), or his handwritten notes at the preliminary 18 hearing because they were not requested. . . . The prosecutor had misled 19 the courts and the defense about serving petitioner these two documents 20 of evidence. However, the criminalist, McCleary did not submit any 21 chemical analysis report, spectrum printout, or bench notes into 22 23 24 25 26 27 28 10 A review of the record shows that Petitioner may have misunderstood the nature of a stipulation: [Petitioner]: . . . They stipulated . . . that Tom McCleary was supposedly came to court and testified that he conducted a chemical analysis test on the cocaine, but he never came to court and testified to anything. (Supp l RT at A3, E4-E7.) The result of the stipulation, entered into by Petitioner s counsel at the preliminary hearing, was an agreement that McCleary would not have to appear and testify at the preliminary hearing, and a statement as to his findings for purposes of the preliminary hearing. (CT at 30.) 26 1 evidence during trial. 2 (Pet. Attach. at 23 (citation omitted).) Petitioner confuses document discovery 3 (i.e., serving Petitioner with the report and notes), with admission of evidence at 4 the preliminary hearing or trial. A review of the record shows numerous hearings 5 on Petitioner s complaints regarding discovery problems, most of which reflect his 6 lack of knowledge or understanding of the legal process. (See, e.g., RT at A3-A4, 7 C6, C14-15 (arguing that he did not want to accept discovery from the prosecution 8 because he wanted the judge to rule on his motion to exclude evidence before he 9 accepted the package); C17-18, E4-E7, E10-E12, 43-49 (discussing Petitioner s 10 refusal to accept materials from his own investigator), 1st Aug. RT at 10-13, 2d 11 Aug. RT at 8-12 (discussing Petitioner s refusal to accept discovery from the 12 prosecution or his investigator because he believed a deadline for production had 13 passed).) 14 The record also clearly reflects that prior to trial Petitioner received copies 15 of the lab receipt and the handwritten notes of the criminalist.11 (CT at C17-C18.) 16 He fails to demonstrate how he was prejudiced from the alleged failure to provide 17 him with the spectrum report about which the criminalist testified and on which he 18 was cross-examined by Petitioner. In fact, on cross-examination, McCleary 19 testified that he prepared a chemical analysis report which he submitted but that he 20 would not normally submit the spectrum printout or handmade notes on which his 21 report was based, unless specifically requested. (RT at 690-91.) 22 As noted by Respondent, stipulations regarding expert testimony are 23 common. (Answer at 22 (citing Brown v. Illinois, 422 U.S. 590, 594 n.3, 95 S. Ct. 24 2254, 45 L. Ed. 2d 416 (1975) (noting trial stipulation regarding testimony of 25 26 11 Less clear is whether Petitioner ever received a copy of the spectrum printout. The California Court of Appeal seems to accept that Petitioner was not 28 provided that printout. (See, e.g., CT at E6-E7; Lodgment 17 at 12.) 27 27 1 ballistics expert); United States v. Tavakkoly, 238 F.3d 1062, 1067 (9th Cir. 2001) 2 (parties stipulated that chemist determined opium weighted 1,350.6 grams).) Such 3 stipulations have never been found to constitute a suppression of evidence or 4 otherwise violate a defendant s constitutional rights, and the stipulation at the 5 preliminary hearing did not do so here. 6 Based on the foregoing, the Court finds that the California court s rejection 7 of Petitioner s claim was neither contrary to, nor involved an unreasonable 8 application of, clearly established federal law, as determined by the United States 9 Supreme Court. Thus, habeas relief is not warranted on this claim. 10 D. Habeas Relief Is Not Warranted on Petitioner s Claim That Insufficient 11 Evidence Supported His Conviction. 12 1. 13 Petitioner contends that insufficient evidence supports his conviction Background. 14 because the prosecutor failed to prove that the drug sold to the officers contained 15 cocaine base. (Pet. Attach. at 20-25.) Specifically, he claims that the prosecutor 16 failed to admit the chemical analysis report into evidence, that the NIK field test 17 conducted by the police is unreliable, and that McCleary s expert opinion was 18 unreliable because the spectrum printout was not admitted into evidence to support 19 that opinion. (Id.) 20 2. 21 The California Court of Appeal rejected Petitioner s claims: California Court Opinions. 22 Taylor also argues that prior to trial the prosecutor served him 23 with a laboratory report that was similar to the stipulation at the 24 preliminary hearing, but the prosecutor did not introduce the laboratory 25 report at trial. This seems to be a misunderstanding of terms. The 26 minute order and the portion of the reporter s transcript cited by Taylor 27 in support of his claim that he was served with a laboratory report 28 use the phrase lab receipt. During cross-examination at trial by 28 1 Taylor, McCleary clarified that the lab receipt was his chemical 2 analysis report. [12] A photocopy of the lab receipt was admitted as 3 part of People s exhibit 1 at trial, and McCleary identified it as a copy 4 of his lab receipt. 5 . . . Taylor also complains of the reliability of a NIK field test 6 apparently used by one of the police officers to test the rock before 7 submitting it to McCleary for analysis. 8 prosecution did not rely upon the results of a field test to establish the 9 composition of the rock. Taylor also argues that, in the absence of the 10 toxicology report, McCleary s testimony was an inadmissible opinion 11 based upon a hypothetical state of facts not supported by the evidence. 12 McCleary testified to his actual scientific testing of the rock, not an 13 opinion based upon a hypothetical. This is irrelevant as the 14 (Lodgment 17 at 11-12.) 15 3. 16 The Fourteenth Amendment s Due Process Clause guarantees that a Legal Standard. 17 criminal defendant may be convicted only upon proof beyond a reasonable doubt 18 of every fact necessary to constitute the crime with which he is charged. In re 19 Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). The 20 Supreme Court announced the federal standard for determining the sufficiency of 21 the evidence to support a conviction in Jackson v. Virginia, 443 U.S. 307, 99 S. 22 Ct. 2781, 61 L. Ed. 2d 560 (1979). Under Jackson, [a] petitioner for a federal 23 writ of habeas corpus faces a heavy burden when challenging the sufficiency of 24 the evidence used to obtain a state conviction on federal due process grounds. 25 26 12 The Court does not agree that Petitioner was referring to Exhibit 1 during his examination of McCleary. In fact, it appears that he may have simply been 28 holding up a copy of the chemical analysis report itself. (RT at 690.) 27 29 1 Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). The Supreme Court has 2 held that the relevant question is whether, after viewing the evidence in the light 3 most favorable to the prosecution, any rational trier of fact could have found the 4 essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 5 319; see also Wright v. West, 505 U.S. 277, 284, 112 S. Ct. 2482, 120 L. Ed. 2d 6 225 (1992). Put another way, the dispositive question under Jackson is whether 7 the record evidence could reasonably support a finding of guilt beyond a 8 reasonable doubt. Chein v. Shumsky, 373 F.3d 978, 982-83 (9th Cir. 2004) (en 9 banc) (quoting Jackson, 443 U.S. at 318). 10 The Jackson standard applies to federal habeas claims attacking the 11 sufficiency of the evidence to support a state conviction. Juan H., 408 F.3d at 12 1274; Chein, 373 F.3d at 983; see also Bruce v. Terhune, 376 F.3d 950, 957 (9th 13 Cir. 2004). The AEDPA, however, requires the federal court to apply the 14 standards of Jackson with an additional layer of deference. Juan H., 408 F.3d at 15 1274. The federal court must ask whether the decision of the California Court of 16 Appeal reflected an unreasonable application of Jackson and Winship to the facts 17 of this case. Id. at 1275 & n.13. 18 4. 19 The actual contents of trial Exhibit 1 are uncertain. At a minimum, it Analysis. 20 consists of a photograph of an envelope on the front of which is shown a lab 21 receipt and McCreary s handwritten initials and the date and a photograph of the 22 rock cocaine;13 it also may possibly consist of the property receipt/form and 23 24 13 As previously noted (supra note 12), the Court is not convinced that the 25 lab receipt and the chemical analysis report are one and the same. (See 26 Answer at 25.) The lab receipt appears to be only a receipt with the number K007651, the number given to the cocaine evidence by the lab. (RT at 687.) The 27 chemical analysis report would presumably actually consist of McCreary s 28 (continued...) 30 1 supplemental reports filled out by the task force regarding the results of the NIK 2 test. (See, e.g., RT at Exhibits (noting Evidence Envelope and its Contents ), 3 638-39, 687-91, 702, 705.) The criminalist, McCreary, testified that he performed 4 a color screening test and a 48 transform infrared spectroscopy test on the cocaine 5 and came to the conclusion that the item consisted of approximately 0.12 grams 6 of a solid substance containing cocaine in the base form. (Id. at 688.) On cross7 examination, Petitioner presented McCreary with a chemical analysis report, and 8 asked McCreary whether it was the report that he prepared and submitted.14 (Id. at 9 690.) McCreary answered that it was his report and confirmed that in addition to 10 the report, he also had a spectrum printout of the test results and some handmade 11 notes that he would not have submitted with the report unless specifically 12 requested. (Id.) The NIK field test, which apparently tests for the presence of 13 cocaine (id. at 700), was conducted by the police and was not something on which 14 McCreary relied in arriving at his opinion. Nor is there any indication that the 15 NIK test is in any way unreliable.15 16 The jury was instructed that it was not required to accept the opinions of the 17 expert as true or correct, and that the meaning and importance of any opinion was 18 for them to decide. (CT at 216.) They were informed that they should consider 19 the expert s knowledge, skill, experience, training, and education, the reasons the 20 expert gave for any opinion, and the facts or information relied on by the expert in 21 reaching that opinion. (Id.) They were also informed that it was for them to 22 23 13 26 14 27 15 (...continued) 24 findings i.e., that the item tested had a net weight of approximately .12 grams of 25 solid substance containing cocaine in the base form. This document was not admitted into evidence. Even if it was unreliable, the tests conducted by McCreary also tested for 28 the presence of cocaine base and found it. 31 1 decide wether the information relied on by the expert was true and accurate. (Id.) 2 The jury is presumed to have followed the court s instructions. Weeks v. 3 Angelone, 528 U.S. 225, 234, 120 S. Ct. 727, 145 L. Ed. 2d 727 (2000). Petitioner 4 has provided no evidence to the contrary. 5 Moreover, no evidence was admitted to call into question McCleary s test 6 results. McCleary testified as to his background and experience, and stated that he 7 personally tested the rock using two different tests, tests which he considered to be 8 valid and unexceptional, and found the sample contained cocaine base. 9 Petitioner would have the Court weigh this evidence differently because the 10 expert s actual report was not admitted into evidence. There is no reason to do so; 11 indeed, the Court must refrain from engaging in such a re-weighing of the 12 evidence. Schlup v. Delo, 513 U.S. 298, 330, 115 S. Ct. 851, 130 L. Ed. 2d 808 13 (1995) ( under Jackson, the assessment of the credibility of witnesses is generally 14 beyond the scope of review ); Bruce, 376 F.3d at 957 ( A jury s credibility 15 determinations are . . . entitled to near-total deference under Jackson. ); Walters v. 16 Maass, 45 F.3d 1355, 1358 (9th Cir. 1995) (a federal habeas court must respect 17 the province of the jury to determine the credibility of witnesses, resolve 18 evidentiary conflicts, and draw reasonable inferences from proven facts by 19 assuming that the jury resolved all conflicts in a manner that supports the 20 verdict ). 21 After viewing the evidence presented at trial in the light most favorable to 22 the prosecution and presuming that the jury resolved all conflicting inferences 23 from the evidence against Petitioner, the Court finds that a rational juror could 24 reasonably have found beyond a reasonable doubt that Petitioner was guilty of 25 selling or giving away cocaine base. Jackson, 443 U.S. at 325-26. Mindful of the 26 sharply limited nature of constitutional sufficiency review and applying the 27 additional layer of deference required by the AEDPA, this Court is unable to 28 find that the California court s rejection of this claim was objectively 32 1 unreasonable. Juan H., 408 F.3d at 1274-75; see also Jackson, 443 U.S. at 319, 2 326. Thus, habeas relief is not warranted on this claim. 3 VII. 4 ORDER 5 Based on the foregoing, IT THEREFORE IS ORDERED that Judgment be 6 entered denying the Petition and dismissing this action with prejudice. 7 8 DATED: April 18, 2012 9 1 HONORABLE OSWALD PARADA United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 33
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