Rodney Barnes v. Terri Gonzales, No. 2:2012cv02076 - Document 18 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER DENYING PETITION AND DISMISSING ACTION WITH PREJUDICE by Magistrate Judge Jean P Rosenbluth: (See document for details.) IT THEREFORE IS ORDERED that Judgment be entered denying the Petition and dismissing this action with prejudice. (Attachments: # 1 PART 2, # 2 PART 3, # 3 PART 4) (rla) Modified on 8/28/2012 (rla).
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1 2 (Lodgment 4 at 7-8 (footnote and some alterations omitted).) The court then rejected this claim on the merits after 3 finding that Petitioner had waived it: 4 The prosecutor did not address 5 [Petitioner] , s 6 closing argument highlighted [Petitioner]'s failure to 7 "tell 8 prosecution, i. e., that he knew the check was fraudulent. 9 Telling the police the truth about the check would get the failure truth" to before In context, testify. trial 10 him "immediately convicted." 11 fearing the truth - 12 provenance of the check. 13 he 14 to the police the and evidence." 15 would not have Instead, [Petitioner] - concocted a flimsy story about the made If [Petitioner] were innocent, up "the The prosecutor alluded to lie and the fake the phony exculpatory 16 evidence because it showed [Petitioner]'s consciousness 17 of guilt. 18 926, 1001 [prosecutor may comment on evidence showing the 19 defendant's consciousness of guilt].) 20 a (See People v. Cunningham (2001) 25 Cal. 4th The argument was "comment on the state of the evidence." (People v. 21 22 evidence. 23 24 25 26 27 28 And I want to sort of contrast that for a second with what an innocent person would do. Because think about it. Think about if someone who really thought this check was good, had really painted some bedrooms and had been given this check for payment, and went to [the bank] to cash it, what would they do? . . (Lodgment 11, 2 Rep.'s Tr. at 1247-48.) 23 1 Cornwell, supra, 37 Cal. 4th at p. 90[.]) 2 refer, in any way, to [Petitioner]'s silence at trial, 3 and the jury could not reasonably have construed it as a 4 reference to [Petitioner]'s failure to testify. 5 It does not (Id. at 8 (some internal quotation marks omitted).) 6 B. Applicable Law 7 Prosecutorial misconduct warrants habeas relief only if it 8 "so infected the trial with unfairness as to make the resulting 9 conviction a denial of due process." Darden v. Wainwright, 477 10 u.s. 11 Renderos v. Ryan, 469 F.3d 788, 799 (9th Cir. 2006) 12 Ninth Circuit has interpreted Darden as requiring a two-step 13 inquiry: whether the prosecutor's actions were improper and, if 14 so, whether they "infected" the trial and rendered it 15 "fundamentally unfair." 16 Cir. 2000). 17 of alleged prosecutorial misconduct is the fairness of the trial, 18 not the culpability of the prosecutor." 19 u.s. 168, 181, 106 S. Ct. 2464, 2471, 91 L. Ed. 2d 144 (1986); (same). The Drayden v. White, 232 F.3d 704, 713 (9th "[T]he touchstone of due process analysis in cases Smith v. Phillips, 455 209, 219, 102 S. Ct. 940, 947, 71 L. Ed. 2d 78 (1982). 20 Relief is limited to cases in which the petitioner can establish 21 that the prosecutorial misconduct resulted in actual prejudice 22 under Brecht, 507 U.S. at 637-38, requiring the alleged error to 23 have had a substantial and injurious effect or influence on the 24 verdict. 25 Shaw v. Terhune, 380 F.3d 473, 478 (9th Cir. 2004). The Fifth Amendment precludes the prosecutor from commenting 26 on a defendant's failure to testify. 27 Griffin, 380 U.S. at 615. A comment is impermissible "if it is manifestly intended to call 28 attention to the defendant's failure to testify, or is of such a 24 1 character that the jury would naturally and necessarily take it 2 to be a comment on the failure to testify." Rhoades v. Henry, 3 598 F.3d 495, 510 (9th Cir. 2010), cert. denied, 132 S. Ct. 401 4 (2011). 5 C. Analysis 6 As a preliminary matter, Respondent asserts that 7 Petitioner's prosecutorial-miscond~ctclaim is procedurally 8 defaulted because the court of appeal rejected it in part based 9 on Petitioner's failure to comply with California's 10 contemporaneous-objection rule. 11 Petitioner has failed to dispute Respondent's contentions because 12 he did not file a reply to the Answer. 13 adjudicate this claim on the merits, however, the Court has done 14 so in the interest of judicial economy. 15 Singletary, 520 U.S. 518, 524-25, 117 S. Ct. 1517, 1523, 137 L. 16 Ed. 2d 771 (1997); Franklin v. Johnson, 290 F.3d 1223, 1232 (9th 17 Cir. 2002) 18 some cases should, reach the merits of habeas petitions if they 19 are, on their face and without regard to any facts that could be (Answer at 1, 22-25.) Because it is easier to See Lambrix v. (noting that federal courts "are empowered to, and in 20 developed below, clearly not meritorious despite an asserted 21 procedural bar"). 22 standard in reviewing this claim because the court of appeal 23 reached its merits in the alternative. 24 James v. Ryan, 679 F.3d 780, 802-03 (9th Cir. 2012) 25 when state court primarily rejects habeas claim on procedural The Court applies the deferential AEDPA (Lodgment 4 at 8); see (holding that 26 ground but alternatively reaches and resolves merits of claim, 27 28 denial of it is entitled to AEDPA deference) . The court of appeal was not objectively unreasonable in 25 1 denying this claim. Taken in context, instead of expressly 2 targeting Petitioner's failure to testify, the prosecutor's 3 remarks focused on Petitioner's pretrial attempt to falsify 4 evidence, in which he created and then gave a fake invoice to his 5 attorney; the remarks therefore were permissible to show 6 Petitioner's consciousness of guilt and were properly grounded in 7 the evidence. Likewise, the prosecutor's statement that 8 Petitioner would have been "immediately convicted" if he had 9 "told the truth" referred to his decision to lie before trial, 10 not his failure to testify during it. 11 statements were not of "such a character that the jury would 12 naturally and necessarily take [them] to be [comments] on the 13 failure" of Petitioner to testify, there was no Griffin error. 14 See Rhoades, 598 F.3d at 510; Winn v. Lamarque, No. 2:03-cv-2347 15 JAM KJN P, 2010 WL 2303304, at *19-20 (E.D. Cal. June 7, 2010) 16 (denying Griffin challenge because prosecutor's statement 17 referred to petitioner's lie to police, which prosecutor claimed 18 had not been subjected to cross-examination, and not his failure 19 to testify at trial). 20 IV. Therefore, because the Habeas relief is not warranted on Petitioner's ineffective- 21 assistance-of-counsel claim 22 Petitioner argues that his trial counsel was 23 constitutionally ineffective for failing to object to the alleged 24 Griffin error or authenticate the fake invoice given to her by 25 Petitioner, which was subsequently used at trial to inculpate 26 27 28 26 1 him. a (Pet. at 6.) 2 Under Strickland v. Washington, 466 U.S. 668, 687, 104 S. 3 Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984), a petitioner claiming 4 ineffective assistance of counsel must show that counsel's 5 performance was deficient and that the deficient performance 6 prejudiced his defense. 7 unreasonable representation falling below professional norms "Deficient performance" means 8 prevailing at the time of trial. rd. at 688-89. To show 9 deficient performance, the petitioner must overcome a "strong 10 p.resumption" that his lawyer "rendered adequate assistance and 11 made all significant decisions in the exercise of reasonable 12 professional judgment." 13 "must identify the acts or omissions of counsel that are alleged 14 not to have been the result of reasonable professional judgment." 15 rd. 16 whether, in light of all the circumstances, the identified acts 17 or omissions were outside the wide range of professionally 18 competent assistance." 19 rd. at 690. Further, the petitioner The initial court considering the claim must then "determine rd. The Supreme Court has recognized that "it is all too easy 20 for a court, examining counsel's defense after it has proved 21 unsuccessful, to conclude that a particular act or omission of 22 counsel was unreasonable." rd. at 689. Accordingly, to overturn 23 the strong presumption of adequate assistance, the petitioner 24 must demonstrate that the challenged action could not reasonably 25 be considered sound trial strategy under the circumstances of the 26 27 28 a Petitioner adopts his ineffective-assistance-of-counsel arguments from his state-court briefs. (Pet. at 6.) 27 1 case. Id. 2 To meet his burden of showing the distinctive kind of 3 "prejudice" required by Strickland, the petitioner must 4 affirmatively 5 show that there is a reasonable probability that, but for 6 counsel's 7 proceeding would have been different. 8 probability is a probability sufficient to undermine 9 confidence in the outcome. unprofessional errors, the result of the A reasonable 10 Id. at 694; see also Richter, 131 S. Ct. at 791 ("In assessing 11 prejudice under Strickland, the question is not whether a court 12 can be certain counsel's performance had no effect on the outcome 13 or whether it is possible a reasonable doubt might have been 14 established if counsel acted differently."). 15 ineffective-assistance-of-counsel claim need not address both 16 components of the inquiry if the petitioner makes an insufficient 17 showing on one. 18 A court deciding an Strickland, 466 U.S. at 697. In Richter, the Supreme Court reiterated that AEDPA requires 19 an additional level of deference to a state-court decision 20 rejecting an ineffective-assistance-of-counsel claim: 21 The 22 application of the Strickland standard was unreasonable. 23 This is different from asking whether defense counsel's 24 performance fell below Strickland's standard. 25 26 27 28 pivotal 131 S. Ct. at 785. Establishing question is whether the state court's The Supreme Court further explained, that a state court's Strickland was unreasonable under 28 § application of 2254 (d) is all the 1 more difficult. 2 § 3 the two apply in tandem, 4 Strickland standard is a general one, so the range of 5 reasonable applications is substantial. 6 courts 7 unreasonableness under Strickland with unreasonableness 8 under 9 not whether counsel's actions were reasonable. The standards created by Strickland and 2254(d) are both "highly deferential," . . . and when must § guard 2254 (d). review is "doubly" so. against When § the The Federal habeas danger of equating 2254 (d) applies, the question is The 10 question is whether there is any reasonable argument that 11 counsel satisfied Strickland's deferential standard. 12 Id. at 788 (citations omitted) . 13 A. 14 The court of appeal rejected this subclaim on direct appeal: 15 [Petitioner] asserts that he received ineffective 16 assistance of counsel, who failed to preserve claims by 17 asserting timely objections in the trial court. 18 true 19 prosecutor's argument. 20 Cal. 4th 406, 420 [counsel's failure to preserve a claim 21 by objecting in the trial court may give rise to a claim 22 for ineffective assistance of counsel].) 23 explanation for this may be tactical: counsel may have 24 decided not to object because it would highlight the 25 issue. 26 In any event, the challenged argument did not refer to 27 [Petitioner]'s decision not to testify at trial and did 28 not constitute prosecutorial misconduct, as discussed in Griffin Error that defense counsel failed to object It is to the (See People v. Turner (2004) 34 However, the (People v. Stewart (2004) 33 Cal. 4th 425, 509.) 29 1 2 3 section 3 of this opinion. (Lodgment 4 at 8.) The court of appeal's denial of this subclaim was not 4 objectively unreasonable because as discussed in Section III, the 5 prosecutor did not violate Griffin in his closing argument, and 6 defense counsel therefore had no reason to object. See Juan H. 7 v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005) (finding counsel 8 not deficient for failing to raise meritless objection) . 9 Further, as the court of appeal noted, counsel could have 10 intentionally chosen not to object to avoid highlighting an 11 incriminating fact, which the invoice certainly was. See Werts 12 v. Vaughn, 228 F.3d 178, 204-05 (3d Cir. 2000) (holding state 13 court's denial of ineffective-assistance-of-counsel claim not 14 unreasonable because counsel's failure to object to prosecutor's 15 opening and closing remarks was based on decision not to 16 "highlight" or "draw attention" to certain issues). 17 informed tactical decision in this regard would be "virtually 18 unchallengeable." 19 See Strickland, 466 U.S. at 690. Counsel's Accordingly, Petitioner is not entitled to relief on this subclaim. 20 B. 21 The court of appeal rejected this subclaim on habeas review, 22 finding that "Petitioner has failed to meet his burden of showing 23 that but for counsel's alleged errors, the outcome of his trial 24 would have been different." 25 denial of this subclaim was not objectively unreasonable. 26 Petitioner has failed to show prejudice because as explained in 27 Section I, even without admission of the invoice, abundant 28 evidence demonstrated his guilt. Failure to Authenticate (Lodgment 8.) 30 The court of appeal's Accordingly, this subclaim does 1 not warrant habeas relief. 2 3 4 ORDER IT THEREFORE IS ORDERED that Judgment be entered denying the Petition and dismissing this action with prejudice. 5 6 7 8 DATED: August 28, 2012 ~ROSENBLUTH .. U. S. MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 31
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