Rathbun vs. Attorney General
Filing
34
ORDER signed by District Judge Virginia A. Phillips on 3/2/10 ORDERING that Petitioner's MOTION for Discovery 32 and Petition for Writ of Habeas Corpus ARE DENIED. CASE CLOSED. (Mena-Sanchez, L)
<![CDATA[
1 2 3 4 5 6 7 8 9 10 11 12 13 14 16 17 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA STEVEN EDWARD RATHBUN, Petitioner, v. K. PROSPER, Warden, ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS FILED BY A STATE PRISONER Case No. CIV S-06-1311 VAP (HC) [Petition filed on June 29, 2006]
Respondent. 15 ________________________ / I. BACKGROUND
Petitioner Steven Edward Rathbun is a state prisoner The petition was filed on June 29,
18 proceeding in pro se in a habeas corpus action pursuant 19 to 28 U.S.C. § 2254. 21 22 On January 5, 2009, the action was transferred to 23 this Court pursuant to an Order of Designation of Judge 24 to Serve in Another District within the Ninth Circuit. 25 On December 1, 2009, the Court granted Petitioner's 26 unopposed motion for leave to file an untimely traverse. 27 After several extensions from the Court, Petitioner filed 28 a traverse on February 19, 2010. 20 2006, and Respondent filed an Answer on October 11, 2006.
1 2 4 5 A. 6 7 Statement of Facts 1. The Events of January 24, 2000 For the reasons stated below, the Court DENIES the 3 Petition.
On January 24, 2000, Petitioner and Julie Robinson
8 were living together in an apartment on the second floor 9 of a four-unit building at 1050 Grand Avenue in 10 Sacramento. (Lodged Doc. 4 at 529.) (Id.) The other unit on Anna Freeman lived 11 the second floor was vacant. 13 (Id. at 525.)
12 in an apartment on the ground floor of that building. At approximately 9:40 p.m., Freeman heard 14 a noise coming from the second floor balcony of the 15 building, which she thought sounded like a gunshot. 16 at 530.) 18 19 After speaking with Lunsford, Freeman called 911. Four Sacramento Police Officers, including 20 (Id. at 553.) 22 (Id. at 598.) She called the property manager, Barbara (Id. at 531.) 17 Lunsford to report the shot. (Id.
21 Christian Prince, arrived at the building at 10:09 p.m. Prince had been told by the dispatch 23 operator that Petitioner, an active parolee, was a 24 possible suspect. (Id.) When Prince first approached the 25 apartment, he saw Petitioner sitting on a living room 26 couch, facing him, and watching television. 27 601.) 28
2
(Id. at
When Prince turned away to communicate with other
1 officers, he heard a "loud bang," which sounded "like 2 somebody had kicked or -- slammed the door." 3 603, 686.) 5 6 Prince knocked on the front door of the apartment, (Id. at 7 and identified himself as a police officer. 8 603.) 10 11 Petitioner then came to the door; he was shirtless, 12 "sweating quite profusely," and appeared to Prince to be 13 "very fidgety" and nervous. (Id. at 604.) After 14 confirming Petitioner's identity and that he was an 15 active parolee, Prince handcuffed Petitioner and searched 16 him for weapons, finding a small green Ziploc plastic bag 17 in Petitioner's pants pocket. 18 19 Prince told Petitioner and Robinson, who had been in 20 the shower, about the reported gunshot, and asked them if 21 there were any guns or other weapons in the house. 22 at 606.) Both responded "no". (Id.) (Id. Prince searched (Id. at 605.) 9 himself a second time. (Id.) 4 Petitioner was out of sight. (Id. at When he turned back towards the apartment, (Id. at 604-605.)
Receiving no response, he knocked and identified
23 the southeast bedroom in the two bedroom apartment, and 24 found a .38-caliber revolver in a lidless box, inside a 25 closet with no door. 27 (Id. at 609, 614.) 28
3
(Id. at 606-607.)
The gun was
26 inside a holster, and Prince noted a scent of gunpowder. Prince found four unfired rounds and
1 one empty shell casing inside the gun, and concluded that 2 a bullet had been fired from the gun based on a firing 3 pin mark on the empty casing. (Id. at 609-10, 676.) 4 Along with the gun, Prince found 250 small Ziploc bags 5 identical to the one in Petitioner's pants pocket, and 6 two small scales of the type commonly used to measure 7 narcotics. (Id. at 612-13.) Affixed to both the gun and 8 one of the scales was an address label with Julie 9 Robinson's name and her previous address. 10 98, 401.) (Id. at 397Near the gun on the floor was a television
11 remote control, which Prince noted was odd, since there 12 was no television in the bedroom. 13 14 16 17 18 20 21 In her statement to Officer Warren, Julie Robinson 22 denied hearing any gunshots, and said she presumed the 23 handgun, like all of the property in the apartment, 24 belonged to Petitioner. (Id. at 586-87.) She explained 25 that, in the two weeks before the incident, she had been 26 living in the bedroom where the gun was found, and that 27 28
4
(Id. at 612-13.)
Petitioner was arrested and taken to Sacramento (Id. at 1010.)
15 County Jail. 2.
Evidence Surrounding Ownership of the Gun
Several persons gave statements and testimony about
19 who may have owned the gun found in the apartment.
1 Petitioner's daughter had been living there before that. 2 (Id. at 445, 586-87.) 3 4 At trial, Julie Robinson stated that someone had 5 recently kicked in the door to the bedroom while she was 6 at work, and, since then, the lock was broken. 7 454-456.) (Id. at Occasionally, Petitioner spent the night in
8 that room with Julie, and he spent other nights in the 9 other bedroom in the apartment. (Id. at 506, 509.) 10 Julie also testified that she had never seen the address 11 labels on the gun or scale, and had no idea how the 12 labels got on those items. (Id. at 398.) She noted, 13 though, that, a few days before the incident, Petitioner 14 told her that she "wouldn't have to be worrying about 15 those address labels anymore." 16 17 Julie Robinson also told officers that she was not 18 sure if the gun belonged to her husband, Lester Robinson, 19 with whom she had been living for twelve years before 20 moving to Petitioner's apartment. (Id. at 398-99, 415.) 21 In that time period, Julie said she never had seen Lester 22 with a handgun, but she acknowledged that she had been 23 told her husband did own a gun. 24 25 In April 2000, defense investigator Wally Damerell 26 told Julie Robinson that Petitioner had mentioned that 27 Lester Robinson had owned multiple guns. 28
5
(Id. at 400-01.)
(Id.)
(Id. at 482,
1 484, 945-46.)
According to Damerell, Julie Robinson
2 responded that she had never seen Lester with any guns 3 and that he did not own any guns. 5 night of the incident. 6 7 In July 2000, while Petitioner was on release from 8 jail, Julie Robinson signed a longer written statement, 9 written out by Damerell. (Id. at 404, 486.) In it, she 10 stated the gun found at the apartment could have belonged 11 to her husband, as it came from her previous residence 12 and her husband had owned a gun, and that it did not 13 belong to Petitioner. (Id. at 463, 913, 949.) At trial, 14 Julie Robinson admitted she had told Petitioner's nephew, 15 Jason Terrell, that the gun seized from the apartment 16 belonged to Lester Robinson, and that one of Lester 17 Robinson's relatives had previously told her that Lester 18 had a gun in the house. (Id. at 443-44, 502.) Terrell 19 similarly testified that, in spring 2000, Julie Robinson 20 told him the gun found in the apartment belonged to 21 Lester and that she had taken it because she did not 22 trust Lester with it. 24 25 Lester Robinson testified that, while he and Julie 26 had both owned guns during their marriage, neither had 27 ever owned a .38-caliber revolver. 28
6
(Id. at 945-46.)
She
4 also said she did not know of any shots being fired the (Id. at 945.)
(Id. at 719.)
Terrell gave this (Id. at 943.)
23 information to Damerell at that time.
(Id. at 851-52.)
He
1 denied ever previously having seen the gun seized from 2 the apartment, but identified one of the scales as one 3 that had belonged to him previously and that he had used 4 for weighing methamphetamine. (Id. at 855, 864.) Lester 5 also testified that, while awaiting trial, Petitioner had 6 asked him to have his sister, Anita West, falsely testify 7 that she had seen the gun at Lester's house. 8 860.) 9 862.) (Id. at (Id. at Lester passed this request along to West.
However, West testified that she had never seen
10 the gun before, including when she helped Julie pack for 11 her move to Petitioner's apartment. 12 13 Petitioner's daughter, Betty (aka "Angel") Rathbun, 14 testified that, shortly before the incident, Julie 15 Robinson had given Angel's boyfriend a small white 16 Derringer pistol in exchange for methamphetamine. 17 at 885-86.) (Id. Angel testified at trial that, on that (Id. at 906.)
18 occasion, Julie told her that she first had to take a 19 sticker off the gun, which she did, and threw the sticker 20 out the window of the car in which they were riding. 21 (Id. at 1005.) 23 him. Julie also told Angel's boyfriend that 22 she had another larger gun that she would look for for (Id. at 885-86.) Angel admitted she never 24 mentioned the sticker on the gun to any investigators or 25 attorneys until the night before her testimony. 26 1008.) 27 28
7
(Id. at
1 B. 2 3
Procedural History 1. The Trial
On October 12, 2000, a jury in the California
4 Superior Court for the County of Sacramento convicted 5 Petitioner of violating California Penal Code section 6 12021(a)(1), which prohibits felons from possessing a 7 firearm. (Lodged Doc. 1 at 164.) In a second phase, on 8 October 16, 2000, the jury found that Petitioner had 9 previously been convicted of two prior serious felonies, 10 as defined by Penal Code sections 667(b)-(I) and 1170.12 11 ("the Three Strikes Law"), and had served a prior prison 12 term, as defined by Penal Code section 667.5. 13 172.) 14 15 16 2. Post-Trial Proceedings On November 7, 2000, Petitioner, proceeding in Pro (Id. at
17 Se, moved for a new trial and the appointment of new 18 cited multiple grounds: ineffective assistance of 19 counsel, a lack of substantial evidence in support of the 20 possession verdict, legal error with respect to the 21 "Three Strikes" finding, challenges to evidentiary 22 rulings, and the discovery of new evidence. (Id.) In 23 this motion, Petitioner noted that there were two 24 witnesses who could give exculpatory testimony, who were 25 unknown to him at the time of trial: (1) Larry Kelly, "a 26 known old associate of Julie Robinson," who would testify 27 that "he knew that gun had been supplied to Julie by her 28
8
1 then husband Lester Robinson," and (2) "Chris," an 2 unknown relative of the Robinsons, who, in her trial 3 testimony, Julie Robinson stated told her that Lester 4 owned a gun. (Id. at 177-78.) Petitioner included an 5 investigator's report from an interview with Larry Kelly, 6 where Kelly indicated that in fall 1999, he had observed 7 Julie Robinson with a handgun she referred to as her 8 "baby," and that was purchased for her by Lester 9 Robinson. 10 11 Petitioner retained new post trial counsel, who 12 examined the gun seized from the apartment, and 13 discovered that the last digit of its serial number on 14 the gun had not been recorded properly in the case files. 15 (Id. at 205-06, 225-26.) Once the appropriate serial 16 number was recorded, it was discovered that the gun had 17 been purchased by Terry Arnold of Sacramento in 1972. 18 (Id. at 229-30, 235-36.) 20 (Id. at 272.) 21 22 Pursuant to an order of the trial court, Petitioner's 23 newly retained counsel filed an amended motion for a new 24 trial on December 15, 2000. (Id. at 207-215.) In that 25 motion, Petitioner argued he was entitled to a new trial 26 on multiple grounds: ineffective assistance of counsel, 27 newly discovered evidence, the incorrect serial number on 28
9
(Id. at 183-84.)
In a subsequent interview,
19 Arnold stated that the gun was stolen in or about 1990.
1 the gun in evidence, legal error with respect to the 2 three strikes finding, improper jury instructions, 3 prosecutorial misconduct, and a lack of substantial 4 evidence in support of the possession verdict. 5 209-14.) (Id. at In this motion, Petitioner referred to
6 potential testimony of Larry Kelly and "Chris," as well 7 as of Ava Harper and Wanda West. (Id. at 209-10.) In 8 connection with the motion, Petitioner submitted an 9 investigator's report from an interview with West, where 10 she corroborated Kelly's statements about previously 11 having seen Julie Robinson with a gun. (Id. at 245-46.) 12 He also included a declaration from Ava Harper, who said 13 she had been willing to testify at the trial that 14 Petitioner "would not have guns around" his sons and that 15 Julie Robinson's room "was always locked," but 16 Petitioner's trial counsel had refused to call her to 17 testify as a witness. 18 19 Petitioner later filed supplementary materials in 20 support of this motion, which included a discussion of a 21 new potential witness, Ronnie Bankston. Although 22 Petitioner and his counsel could not locate Bankston, 23 Petitioner stated that, while they were together in jail, 24 Bankston told him that Julie Robinson had admitted that 25 the gun in question was hers. 26 27 28
10
(Id. at 248-49.)
(Id. at 232, 257, 259.)
1
The trial court held evidentiary hearings and heard
2 argument on the motion for a new trial over the course of 3 seven days in the spring and summer of 2001, before 4 orally denying the motion on August 31, 2001. 5 11; Lodged Doc. 4 at 1313-1787.) 6 7 On April 3, 2002, the trial court ruled that the two 8 prior convictions the jury had found to be serious 9 felonies were indeed serious felonies under the Three 10 Strikes Law, and thus, on April 26, 2002, sentenced 11 Petitioner to a term of imprisonment of 25 years to life 12 under the Three Strikes Law, plus an additional year for 13 the prior prison term, as specified by Cal. Penal Code § 14 667.5. 15 16 17 3. Post-Judgment Proceedings Petitioner appealed both his conviction and sentence, (Lodged Doc. 1 at 13.) (Id. at
18 and the California Court of Appeal, Third Appellate 19 District, affirmed the Superior Court's judgment on March 20 5, 2004. (Lodged Doc. 2, App'x ("Ct. of Appeal Op."); 21 Lodged Doc. 5.) Petitioner then filed a petition for 22 review in the California Supreme Court on April 8, 2004, 23 which that court summarily denied on May 12, 2004. 24 (Lodged Doc. 2.) 25 26 28
11
On July 29, 2004, Petitioner filed a petition for a
27 writ of habeas corpus in the California Superior Court
1 for Sacramento County.
(Lodged Doc. 8. at 6-32.)
The
2 Superior Court denied the petition on September 14, 2004, 3 (Id. at 2-5), and denied Petitioner's subsequent motion 4 for reconsideration on October 21, 2004. (Id. at 1.) On 5 April 11, 2005, Petitioner filed a habeas petition in the 6 California Supreme Court, which that court denied on May 7 24, 2006. 8 9 C. 10 Petitioner's Claims Petitioner filed this petition on June 2, 2006, (Lodged Doc. 3.)
11 asserting the following grounds for federal habeas corpus 12 relief: 13 15 17 19 21 1. Petitioner is actually innocent of the crime of 14 which he stands convicted; 2. The evidence presented at trial was insufficient 16 to support Petitioner's conviction; 3. Petitioner's counsel on direct appeal was 18 ineffective; 4. The trial court abused its discretion in denying 20 Petitioner's motion for a new trial; 5. The trial court erred in concluding that 22 Petitioner's 1995 conviction for violating Cal. Penal 23 Code § 246.3 (discharging a firearm in a grossly 24 negligent manner) constituted a "prior strike," since 25 there was no finding that Petitioner fired a weapon 26 intentionally; 27 28
12
1
6.
The trial court erred in concluding that
2 Petitioner's 1977 conviction for violating Cal. Penal 3 Code § 245 (assault with a deadly weapon) constituted a 4 prior strike, due to inadequate jury instructions in the 5 1977 trial; 6 7. The representation of a court in 1995 that 7 Petitioner had "no strikes" barred the trial court from 8 concluding that the 1977 conviction constituted a prior 9 strike; 10 8. At trial, the prosecution knowingly used 11 perjured testimony, failed to correct known false 12 testimony, and/or failed to disclose exculpatory 13 evidence; 14 15 9. Cumulative prejudice requires reversal; and 10. The trial court erred in considering incorrect
16 and hearsay evidence in a probation report in sentencing 17 Petitioner. 18 19 20 II. LEGAL STANDARD The Antiterrorism and Effective Death Penalty Act of
21 1996 ("AEDPA") governs the Court's review of this 22 Petition, as the Petition was filed after AEDPA's 23 effective date. Under 28 U.S.C. § 2254(a), "a district 24 court shall entertain an application for a writ of habeas 25 corpus in behalf of a person in custody pursuant to the 26 judgment of a State court only on the ground that he is 27 28
13
1 in custody in violation of the Constitution or laws or 2 treaties of the United States." 3 4 When considering a properly exhausted claim under 5 AEDPA, a federal court must defer to a state court's 6 holding unless it "'was contrary to, or involved an 7 unreasonable application of, clearly established Federal 8 law, as determined by the Supreme Court of the United 9 States,' or if the state court decision 'was based on an 10 unreasonable determination of the facts in light of the 11 evidence presented in the State court proceeding.'" 12 Smith v. Curry, 580 F.3d 1071, 1079 (9th Cir. 2009), 13 quoting 28 U.S.C. §§ 2254(d)(1)-(2). 14 15 "Clearly established Federal law" is defined as "the 16 governing legal principle or principles set forth by the 17 Supreme Court at the time the state court renders its 18 decision." Curry, quoting Lockyer v. Andrade, 538 U.S. "[I]t is not 'an unreasonable 19 63, 71-72 (2003).
20 application of clearly established Federal law' for a 21 state court to decline to apply a specific legal rule 22 that has not been squarely established by [the Supreme] 23 Court." Knowles v. Mirzayance, --- U.S. ---, 129 S. Ct. However, "the Supreme Court need not 24 1411, 1419 (2009).
25 have addressed an identical fact pattern to qualify as 26 clearly established law, as 'even a general standard may 27 be applied in an unreasonable manner.'" 28
14
Jones v. Ryan,
1 583 F.3d 626, 635 (9th Cir. 2009), quoting Panetti v. 2 Quarterman, 551 U.S. 930, 953 (2007). 3 4 5 A. 6 III. DISCUSSION Petitioner's First Claim Petitioner's first claim is one of actual innocence.
7 On habeas review, the Superior Court found this issue 8 barred by the Court of Appeal's determination on direct 9 appeal that there was sufficient evidence to sustain his 10 conviction. 11 12 It is unsettled whether a freestanding actual House 13 innocence claim is cognizable under federal law. 14 v. Bell, 547 U.S. 518, 554-55 (2006). (Lodged Doc. 8 at 2.)
However, "a habeas
15 petitioner asserting a freestanding innocence claim must 16 go beyond demonstrating doubt about his guilt, and must 17 affirmatively prove that he is probably innocent." 18 Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997) 19 (en banc). To do so, a petitioner must produce "new 20 reliable evidence- whether it be exculpatory scientific 21 evidence, trustworthy eye-witness accounts, or critical 22 physical evidence- that was not presented at trial." 23 Cook v. Schriro, 538 F.3d 1000, 1028 (9th Cir. 2008), 24 quoting Schlup v. Delo, 513 U.S. 298, 324 (1995). 25 26 28
15
Petitioner's only argument is that the testimonial
27 evidence and information about the gun not presented at
1 trial shows that the gun at issue belonged to Lester or 2 Julie Robinson. This evidence is not actually 3 exculpatory, though. Penal Code § 12021(a)(1) makes it 4 unlawful for a felon to "own[], purchase[], receive [], 5 or ha[ve] in his or her possession or under his or her 6 custody or control any firearm." "Possession may be 7 physical or constructive, and more than one person may 8 possess the same contraband." People v. Williams, 170 9 Cal. App. 4th 587, 625 (2009). Thus, evidence that shows 10 that the gun belonged to one of the Robinsons at one time 11 or another does not preclude a finding that Petitioner 12 was in violation of section 12021(a)(1) on the night of 13 the incident. 14 15 This evidence could have been used to impeach the 16 Robinsons, and "impeachment evidence, by itself, can 17 demonstrate actual innocence, where it gives rise to 18 'sufficient doubt about the validity of [the] 19 conviction.'" Sistrunk v. Armenakis, 292 F.3d 669, 676 20 (9th Cir. 2002) (quoting Carriger v. Stewart, 132 F.3d 21 463, 478 (9th Cir. 1997)). But the evidence does not 22 create such doubt here. The trial court reviewed all of 23 this evidence, and explained at length why none of it was 24 persuasive, stating that "nothing makes sense in the way 25 the defense is presenting it." (Lodged Doc. 4 at 1796.) 26 The court found the testimony offered by Wanda West and 27 Larry Kelly was neither "particularly satisfying" nor 28 "persuasive," as it contained many factual and logical
16
1 inconsistencies. (Id. at 1795-1796.) The court found 2 Ronnie Bankston's testimony not credible, as it was 3 improbable that Julie Robinson had confessed to Bankston 4 that she perjured herself, given that they did not have a 5 close relationship. (Id. at 1800.) Rather, upon 6 reviewing letters sent by Petitioner to Bankston, the 7 court concluded Petitioner was "obviously coaching Mr. 8 Bankston as to what he's to say and reminding him what to 9 say," (Id. at 1801), consistent with a "pattern" of 10 efforts "to fabricate and coach a witness." (Id. at 11 1795.) 12 13 The state court's conclusion that the evidence 14 presented by Petitioner does not demonstrate that "it is 15 more likely than not that no reasonable juror would have 16 convicted him," Schlup v. Delo, 513 U.S. 298, 326 17 (1995), was not objectively unreasonable, and therefore 18 Petitioner's claim of actual innocence is rejected. 19 20 B. 21 Petitioner's Second Claim Petitioner's second claim is that there was
22 insufficient evidence to support his conviction. When 23 considering such a challenge, a court is to consider 24 whether "viewing the evidence in the light most favorable 25 to the prosecution, any rational trier of fact could have 26 found the essential elements of the crime beyond a 27 reasonable doubt." Schad v. Ryan, 581 F.3d 1019, 1028 28
17
1 (9th Cir. 2009), quoting Jackson v. Virginia, 443 U.S. 2 307, 319 (1979). 3 4 The Court of Appeal found that there was sufficient 5 evidence to support a "rational inference" that 6 Petitioner "possessed the gun on at least two occasions." 7 (Ct. of App. Op. at 5.) Specifically, it found that 8 Julie Robinson's testimony that she had never put a label 9 on the gun, combined with Petitioner's statement that she 10 "wouldn't have to be worrying about those address labels 11 anymore," supported an inference that Petitioner had 12 possessed the gun and placed the label on it. (Id. at 13 4.) The Court of Appeal also found that Officer Prince's 14 testimony as to Petitioner's behavior when he first 15 arrived at the apartment, Petitioner's delay in answering 16 the door, and the discovery of the television remote on 17 the floor in the bedroom, supported an inference that 18 Petitioner had possessed the gun at the time the police 19 arrived, and had tried to hide it in the bedroom. 20 at 4-5.) 21 22 Petitioner claims that Julie Robinson's testimony was 23 false, but offers no proof of this accusation. He also 24 argues that, if Julie Robinson was taking a shower or 25 getting dressed at the time of the incident, it would 26 have been "impossible" for him to hide the gun in her 27 closet without her knowledge. This argument does not 28 negate the evidence noted by the Court of Appeal, along
18
(Id.
1 with the evidence that the gun had been fired recently. 2 Considering this collective evidence in the light most 3 favorable to the prosecution, as it must on habeas 4 review, the Court cannot conclude no rational trier of 5 fact could have found the essential elements of the 6 crime. 7 8 10 11 C. 12 Petitioner's Third Claim Petitioner argues he was denied effective assistance Thus, the Court of Appeal's decision as to claim two 9 was not objectively unreasonable.
13 of counsel in pursuing the appeal of his conviction. He 14 argues three errors constituted ineffective assistance. 15 First, he states that his counsel, Jerry D. Whatley, 16 "refused a request for oral arguments" from the Court of 17 Appeal. Second, he argues that Whatley failed to 18 introduce evidence showing that Lester Robinson's 19 testimony was false. Third, he argues that the arguments 20 that Whatley presented on appeal were insufficient. 21 These arguments were presented to both the Superior Court 22 and California Supreme Court in Petitioner's state habeas 23 corpus petitions. 24 25 To establish a constitutional violation based on 26 ineffective assistance of counsel, "a petitioner must 27 show that: (1) his [] counsel's performance 'fell below 28 an objective standard of reasonableness'; and (2) 'there
19
1 is a reasonable probability that, but for counsel's 2 unprofessional errors, the result of the proceeding would 3 have been different.'" Jones, 583 F.3d at 636, quoting 4 Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). 5 See also Turner v. Calderon, 281 F.3d 851, 872 (9th Cir. 6 2002) (stating that the Strickland standard applies to 7 claims of ineffective assistance of appellate counsel). 8 None of the three errors asserted meet this test. 9 10 11 1) Failure to Request Oral Argument On January 7, 2004, the Court of Appeal issued a
12 letter to counsel in the case stating that the court was 13 "prepared to render a decision . . . without hearing oral 14 argument." (Lodged Doc. 7.) If a written hearing was 15 not requested by January 13, 2004, oral argument would be 16 considered waived. (Id.) It appears no written request 17 was ever filed, and the court issued a ruling on the 18 matter without hearing argument. On habeas review, the 19 Superior Court concluded that Petitioner failed to show 20 that the failure to request argument was either 21 unreasonable or prejudicial. (Lodged Doc. 8 at 4.) 22 23 The Superior Court's determination was not 24 objectively unreasonable, as the failure to request oral 25 argument meets neither of the two prongs of Strickland. 26 The waiver of oral argument for appeals is commonplace, 27 as demonstrated by the Court of Appeal's letter. As 28 another California district court has noted, "If counsel
20
1 was satisfied that the case was adequately presented in 2 the briefs and record and that the decisional process 3 would not have been significantly aided by oral argument, 4 counsel was not obligated to request oral argument. 5 Moreover, if the court of appeal had any question 6 regarding the issues presented in the case, it would have 7 requested oral argument." Socorro v. Thurman, No. 8 C-94-1407 MHP, 1995 WL 125429, at *4 (N.D. Cal. Mar. 17, 9 1995). There is no evidence that suggests the decision 10 not to request an oral argument in this case fell below 11 the objective standard of reasonableness. 12 13 As to the second Strickland prong, prejudice, the 14 Ninth Circuit has held that the failure to appear at a 15 scheduled oral argument is not per se prejudicial. 16 United States v. Birtle, 792 F.2d 846, 848-49 (9th Cir. 17 1986). Thus, the Court cannot conclude that the mere 18 failure to request an oral argument is prejudicial in 19 light of Petitioner's inability to show a reasonable 20 probability that an oral argument would have had any 21 effect on the Court of Appeal's decision. See Ouellette 22 v. McKee, No. 5:05-cv-892008, WL 4376374, at *19 (W.D. 23 Mich. Sept. 22, 2008) (rejecting ineffective assistance 24 claim based on failure to request oral argument on appeal 25 for failure to show prejudice); Martin v. United States, 26 Crim. No. 95-81165/ Civ. No. 03-71781, 2007 WL 5497196, 27 at *12 (E.D. Mich. May 17, 2007) (same); United States v. 28
21
1 Neeley, No. 00 C 6119, 2001 WL 521841, at *5 (N.D. Ill. 2 May 14, 2001) (same). 3 4 5 2) Failure to Present Additional Evidence Petitioner argues that Whatley failed to address the
6 "post-trial" declarations of Larry Kelly and Wanda West 7 in his appeal challenging the sufficiency of the evidence 8 used to convict him. In ruling on his habeas petition, 9 the Superior Court did not specifically address this 10 evidence. If this evidence was not before the jury which 11 convicted him, though, it could not logically be relevant 12 to a challenge to the sufficiency of that evidence. 13 Thus, appellate counsel's failure to introduce this 14 evidence neither fell below the objective standard of 15 reasonableness nor had any prejudicial effect. 16 17 18 3) The Sufficiency of Counsel's Arguments Petitioner argues that Whatley's argument as to the
19 sufficiency of the evidence against Petitioner was "brief 20 lip service" and that Whatley "failed to dig in and prove 21 it." Specifically, he contends Whatley should have 22 raised certain arguments to challenge the credibility of 23 Julie Robinson and Officer Prince's testimony. He also 24 argues that Whatley "failed to file and raise all grounds 25 and issues now being raised," including the denial of 26 Petitioner's motion for a new trial and alleged errors in 27 the counting of "strikes." 28
22
1
Whatley's failure to argue the appeal exactly in the
2 manner which Petitioner would have liked does not 3 establish ineffective assistance. "An accused does not 4 have a constitutional right to have his counsel press 5 nonfrivolous points requested by his client if counsel 6 decides as a matter of professional judgment not to press 7 those points." Bowen v. Foltz, 763 F.2d 191, 194 n.4 8 (6th Cir. 1985). See also Chandler v. United States, 218 9 F.3d 1305, 1319 (11th Cir. 2000); United States v. 10 Boigegrain, 155 F.3d 1181, 1187 (10th Cir. 1988); 11 Rodriguez-Quezada v. United States, 06 Cr. 188/ 08 Civ. 12 5290, 2008 WL 4302518, at *3 (S.D.N.Y. Sept. 15, 2008). 13 Having reviewed the brief submitted by Whatley to the 14 Court of Appeal, (Lodged Doc. 6), the Court finds no 15 merit in the argument that Whatley's performance was so 16 deficient as to fall below the objective standard of 17 reasonableness required by Strickland. 18 19 In a nearly fifty-page brief, Whatley addressed seven 20 independent arguments as to why the conviction should be 21 reversed, including over twenty pages devoted solely to 22 the issue of the "counting of strikes," which Petitioner 23 incorrectly states counsel failed to raise. See Lodged 24 Doc. 6 at 32-55. The only issue unaddressed in the brief 25 submitted by Whatley is the denial of the motion for a 26 new trial. Under California law, "A trial court has 27 broad discretion in ruling on a motion for a new trial, 28 and there is a strong presumption that it properly
23
1 exercised that discretion. The determination of a motion 2 for a new trial rests so completely within the court's 3 discretion that its action will not be disturbed unless a 4 manifest and unmistakable abuse of discretion clearly 5 appears." People v. Davis, 10 Cal. 4th 463, 524 (1995). 6 Given this extremely deferential standard of review, and 7 the fact that the substantive issues in the motion for a 8 new trial were largely independently raised in the direct 9 appeal, it was neither unreasonable nor prejudicial for 10 his counsel to choose not to directly address the denial 11 of the motion. 12 13 Since none of Petitioner's three arguments to 14 demonstrate ineffective assistance of appellate counsel, 15 the Superior Court's decision as to claim three was not 16 objectively unreasonable. 17 18 D. 19 Petitioner's Fourth Claim Petitioner's fourth claim is that the trial judge's
20 denial of the motion for a new trial constituted an abuse 21 of discretion, and thus violated his rights under the 22 Fourth, Fifth, Sixth, and Fourteenth Amendments. "Even 23 if Petitioner[] is correct that the trial court erred or 24 abused its discretion in denying Petitioner's motion for 25 a new trial, 'federal habeas corpus relief does not lie 26 for errors of state law.'" Saesee v. Horel, No. 27 1:08-CV-01152 OWW JMD HC, 2009 WL 3857483, at *15 (E.D. 28 Cal. Nov. 17, 2009) (quoting Estelle v. McGuire, 502 U.S.
24
1 62, 67 (1991)). See also Grande v. Herndon, No. CV 2 08-8020-SGL (MLG), 2009 WL 2407411, at *15 (C.D. Cal. 3 Aug. 4, 2009); Schumann v. Patrick, No. EDCV 07-01181-RGK 4 (VBK), 2009 WL 1270462, at *18-*19 (C.D. Cal. May 5, 5 2009). In conducting habeas review, "federal courts 6 generally are bound by a state court's construction of 7 state laws, including the denial of a motion for new 8 trial under state law, unless the petitioner can show an 9 independent violation of his federal constitutional 10 rights." Washington v. Horel, No. CV 05-6043 JVS(JC), 11 2008 WL 4427221, at *4 (C.D. Cal. Sept. 30, 2008) 12 (emphasis in original). 13 14 Petitioner appears to allege several independent 15 constitutional violations within this claim, though. 16 Since the Court must construe pro se habeas filings 17 liberally, Laws v. Lamarque, 351 F.3d 919, 924 (9th Cir. 18 2003), the Court, as the State has in its Answer, 19 considers these allegations as independent challenges to 1 20 his conviction. 21 22 24 As a preliminary matter, in its ruling on his state 23 habeas petition, the Superior Court determined that Several of the asserted grounds for a new trial 25 (e.g., "all the issues raised and argued at new trial motion combined," "the cumulative effects of all the 26 errors", the discovery of new evidence, the use of perjured evidence to convict him, and the legal errors 27 relating to his prior convictions), however, are embodied by Petitioner's other claims and are thus addressed 28 separately.
25
1
1 Petitioner procedurally defaulted on many of these 2 claims. The court held: 3 4 5 6 With the exception of his ineffective assistance of appellate counsel [claim], all of Petitioner's other claims are assertions of error that occurred at his trial. These issues could have and should have been raised on appeal. . . . [T]hese claims are barred by [In re] Dixon [41 Cal. 2d 756, 759 (1953)].
7 (Lodged Doc. 8 at 2-3.) Generally, a claim is 8 procedurally defaulted in federal court if it was 9 actually raised in state court but found by that court to 10 be defaulted on state procedural grounds. Spreitz v. 11 Ryan, 617 F. Supp. 2d 887, 899 (D. Ariz. 2009), citing 12 Coleman v. Thompson, 501 U.S. 722, 729-30. However, the 13 State has failed to raise this issue in its Answer to 14 this habeas petition, and it is thus deemed waived. Vang 15 v. Nevada, 329 F.3d 1069, 1073 (9th Cir. 2003.) 16 17 18 1. "Failure of Trial Court to File" Various Charges Petitioner argues that his initial trial was tainted
19 by the trial court's failure to bring various charges 20 against Julie and Lester Robinson. Petitioner 21 specifically argues that both Robinsons should have been 22 charged with perjury, and that Julie Robinson should have 23 been charged with possession of stolen property and 24 assault of a custodial officer under California Penal 25 Code section 245.3. Whether or not to charge the 26 Robinsons was a matter of prosecutorial discretion, and 27 "a private citizen lacks a judicially cognizable interest 28 in the prosecution or nonprosecution of another." Linda
26
1 R.S. v. Richard D., 410 U.S. 614, 619 (1973); Adnan v. 2 Santa Clara County Dep't of Corrections, No. C 02-3451 3 CW, 2002 WL 32069635, at *3 (N.D. Cal. Sept. 17, 2002). 4 Thus, any failure to bring these charges against the 5 Robinsons did not violate Petitioner's constitutional 6 rights. 7 8 9 2. Testimony of Officer Wyley Petitioner contends Officer Wyley should not have
10 been allowed to testify as to his observations on the 11 night of the incident without "first producing a Police 12 report of any statement of facts of what he was to The United States Constitution 13 testify too [sic]." 14 imposes no such a limit on Wyley's testimony, and thus 15 Petitioner has failed to state a basis for habeas relief. 16 17 18 3. Motion to Suppress Petitioner argues the trial court erred in denying
19 his motion to suppress the evidence seized from "Julie 20 Robinson['s] private room, from her private property with 21 no arrest being made for [violation of Cal. Penal Code §] 22 246.3, or any charges on her," as the fruits of an 23 illegal search and seizure. Petitioner lacks standing to 24 assert a violation of Julie Robinson's Fourth Amendment 25 rights, however. A person has Fourth Amendment standing 26 "only if there has been a violation 'as to him,' 27 personally." United States v. SDI Future Health, Inc., 28 568 F.3d 684, 695 (9th Cir. 2009). Since Petitioner does
27
1 not argue that his reasonable expectation of privacy has 2 been infringed, he does not state a basis for habeas 3 relief. 4 5 6 4. Ineffectiveness of Trial Counsel Petitioner argues he should have been granted a new
7 trial due to the ineffectiveness of his trial counsel. 8 The standard for ineffective assistance of trial counsel 9 is the same as the Strickland standard applied to 10 Petitioner's claim of ineffective assistance of appellate 11 counsel above. Petitioner argues several of his trial 12 lawyer's actions or inactions constituted ineffective 13 assistance. The trial court considered these claims in 14 Petitioner's motion for a new trial, and was "satisfied 15 clearly that any failings of [counsel] d[id] not reach 16 the level of ineffective assistance. And to the extent 17 any decision may be questioned, it would not have caused 18 or brought about a different result if it was handled
2 19 differently."
(Lodged Doc. 4 at 1802.)
20 21 22 a) Examination of Julie Robinson Petitioner argues that his trial attorney improperly
23 "fail[ed] to impeach Julie Robinson," refused "to recall 24 her over her perjury," and failed to introduce a taped 25 26 Petitioner raised this issue in his habeas petition before the Superior Court, but that court did not address 28 it. 27
28
2
1 recording of an interview of Robinson by someone in the 2 District Attorney's office. 3 4 The Court has reviewed the transcript of Julie 5 Robinson's testimony, including the cross-examination and 6 two rounds of re-cross-examination. (Lodged Doc. 4 at 7 437-80, 501-05, 509-10.) While counsel did not seek to 8 introduce the tape recording at issue, he did cross9 examine Julie Robinson about that interview. (Id. at 10 439-442.) The depth and breadth of counsel's questioning 11 and attempts at impeachment were sufficient, and did not 12 fall below an objective standard of reasonableness. 13 14 15 b) Examination of Lester Robinson Petitioner also argues that his trial attorney
16 improperly "fail[ed] to impeach Lester Robinson," by 17 refusing to confront him about a conversation that 18 Petitioner and Lester Robinson had in 2000. Petitioner 19 claims that Lester Robinson admitted to owning the gun 20 at issue in that conversation, but Lester Robinson 21 maintains that Petitioner attempted to solicit false 22 testimony at that time. 23 24 Outside the presence of the jury, Petitioner's trial 25 counsel objected to the late introduction of Lester 26 Robinson as a rebuttal witness at all, and Defendant 27 repeatedly interrupted his lawyer while the latter was 28 speaking to the trial judge about this issue. (Lodged
29
1 Doc. 4 at 776-777, 782-84.) Nonetheless, his attorney 2 successfully persuaded the trial judge to conduct a 3 preliminary examination of Lester Robinson, outside the 4 presence of the jury, pursuant to California Evidence 5 Code section 402. 6 7 The Court has reviewed the transcript of the direct 8 and cross-examinations of Lester Robinson, both outside 9 the presence of the jury (id. at 828-842) and in the 10 presence of the jury (id. at 863-873, 874-75). The 11 cross-examination included attempts to impeach Mr. 12 Robinson's testimony as to the disputed conversation. 13 (Id. at 869-871.) The depth and breadth of the 14 questioning and attempts at impeachment were sufficient, 15 and did not fall below an objective standard of 16 reasonableness. 17 18 19 c) Disclosure of Parole Status Petitioner claims that his lawyer's disclosure at (Id. at 782-83.)
20 trial of Petitioner's parole status at the time of his 21 arrest constituted ineffective assistance. At the 22 hearing on the motion for a new trial, trial counsel 23 explained that Petitioner actually urged the introduction 24 of his parole status, despite counsel's initial 25 disinclination, in order to provide a rationale for why 26 Petitioner was sweating when the police arrived at his 27 apartment. (Lodged Doc. 4 at 1544-54.) Given this 28 explanation, the decision to disclose Petitioner's parole
30
1 status to the jury did not fall below an objective 2 standard of reasonableness. 3 4 5 d) Failure to Call Ava Harper as a Witness Petitioner claims that his trial counsel failed "to
6 treat Ava Harper with any respect, blowing spittle in her 7 face while screaming at her in front of jurors" and 8 improperly failed to call her as a witness. 9 "Disrespect" toward Ms. Harper does not demonstrate a 10 constitutional infirmity in Petitioner's conviction. 11 Petitioner argues that Harper would have testified (1) 12 that Petitioner was actually at her home, dropping off 13 his daughter, at the time of the incident, and (2) that 14 her children had told her that the door to the bedroom 15 where the gun was found was always locked. Counsel's 16 decision not to call Harper as a witness to testify to 17 these two facts neither fell below an objective standard 18 of reasonableness nor was it material. 19 20 As to Harper's "alibi" testimony, Harper indicated 21 that, if she had been called to testify before a jury, 22 she would have stated that Petitioner arrived at her home 23 at "about 9:00" on the night in question, and left 24 shortly thereafter. (Lodged Doc. 4 at 1409, 1411, 1422.) 25 Freeman reported hearing the gunshot at 9:40 p.m., as 26 noted above. Thus, Harper's testimony did not establish 27 an "alibi." As to Harper's potential testimony that her 28 children told her the door was kept locked, the trial
31
1 court accurately noted that such testimony would be 2 hearsay and thus inadmissible. (Lodged Doc. 4 at 1790.) 3 In light of the limited probative value of Harper's 4 testimony, trial counsel's decision not to call her as a 5 witness did not violate either prong of the Strickland 6 standard. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
32
e) Failure to Properly Question Betty (aka Angel) Rathbun Petitioner claims that his lawyer failed to "properly question" his daughter, Betty (aka Angel) Rathbun, about being dropped off at Harper's house on the night of the incident. Angel testified as a Defense witness at the
trial, but did not give any testimony about the night of the incident. (Lod. Doc. 4 at 881-893, 1004-1008.)
There is no indication that Angel would have given testimony any different from that offered by Ava Harper as to when Petitioner dropped Angel off at her home. noted above, this testimony was immaterial, as significant time elapsed between Petitioner dropping Angel off and the reported gunshot. failure to Accordingly, any As
question Angel more thoroughly was
nonprejudicial.
f) Failure to Call Betty Fielding as a Witness Petitioner claims that the failure to call his mother, Betty Fielding, as a witness constituted
1 ineffective assistance. He argues that she had "highly 2 relevant evidence over the gun's true ownership." 3 4 In connection with the hearing on the motion for a 5 new trial, Betty Fielding testified as to what, had she 6 been called as a witness, she would have told the jury. 7 She discussed a telephone conversation she had had with 8 Julie Robinson shortly after Petitioner was arrested, in 9 which Julie said "She didn't know why they took Stevie in 10 to begin with because they had taken a gun that was hers 11 from the bedroom. Stevie didn't have nothing to do with 12 it. It wasn't Stevie's gun, and she didn't know why they 13 took Steven in for sure." (Lod. Doc. 4 at 1359-60.) She 14 claimed that Julie had told her that Lester Robinson had 15 obtained the gun for her. 16 17 At the same hearing, Petitioner's trial counsel 18 explained that he did not put Fielding on as a witness 19 because her testimony would be substantially the same as 20 the testimony of Jason Terrel. (Lod. Doc. at 1571.) He 21 stated, "Rather than have cumulative testimony, the exact 22 same from a person most interested in having her son 23 found not guilty, the mother of the Defendant, I chose to 24 put on the nephew of the Defendant." 25 26 Given the limited relevance of Fielding's testimony, 27 counsel's strategic decision not to call her as a witness 28 was neither prejudicial, see Matylinsky v. Budge, 577
33
(Id. at 1374.)
(Id.)
1 F.3d 1083, 1097 (9th Cir. 2009) ("[a] petitioner cannot 2 show prejudice for failure to present what is most likely 3 cumulative evidence"), nor did it fall below an objective 4 standard of reasonableness, see Babbitt v. Calderon, 151 5 F.3d 1170, 1174 (9th Cir. 1998) (holding "it was not 6 unreasonable for counsel not to pursue such testimony 7 when it was largely cumulative of the testimony" already 8 offered). 9 10 E. 11 Petitioner's Fifth, Sixth, and Seventh Claims Petitioner's fifth, sixth, and seventh claims
12 challenge the applicability of the "three strikes" 13 sentencing enhancement to him, as defined by California 14 Penal Code sections 667(b)-(I) and 1170.12. His fifth 15 claim is that his 1995 conviction for violating Penal 16 Code section 246.3 should not have been counted as a 17 serious felony, and thus a "strike", against him. His 18 sixth and seventh claims are that his 1977 conviction for 19 violating Penal Code section 245(a) should not have been All three of these claims were 20 counted as a strike. 21 considered by the California Court of Appeal on direct 22 appeal and rejected. 23 24 25 1. The 1995 Conviction On July 3, 1995, Petitioner pled guilty to and was
26 convicted of violating California Penal Code section 27 246.3, a felony discharge of a firearm in a negligent 28 manner. (Lodged Doc. 4 at 1150-53.)
34
Petitioner argues
1 that since he did not "intentionally" fire a gun in that 2 case, it did not constitute a serious felony under the 3 Three Strikes Law. Under California Penal Code section 4 1192.7(c)(8), a "serious felony" includes "any felony in 5 which the defendant personally uses a firearm." On 6 direct appeal, the California Court of Appeal rejected 7 Petitioner's argument that a conviction for the negligent 8 discharge of a gun does not constitute a serious felony 9 under section 1192.7(c)(8), concluding that the use of 10 the phrase "personally uses" in the statute does not 11 imply that the use must be intentional. (Ct. of Appeal 3 Petitioner's fifth claim is thus a 12 Op. at 18-20.) 13 challenge to a state court's interpretation of state law, 14 and not cognizable in federal habeas proceedings. 15 Bradshaw v. Richey, 546 U.S. 74, 76 (2005). 16 17 18 19 20 21 22 23 24 25 26 Although Petitioner addressed this issue in his habeas petition before the Superior Court, that Court did 27 not discuss Petitioner's challenges to the calculation of 28 prior strikes.
35
3
1 2
2.
The 1977 Conviction4
On September 30, 1977, Petitioner pled guilty to
3 violating California Penal Code section 245(a), assault 4 with a deadly weapon. (Lodged Doc. 4 at 1145-46.) 5 Petitioner makes three arguments as to why this 6 conviction should not have counted as a prior "strike". 7 First, he claims that the jury in his 2001 trial was not 8 properly instructed as to what constitutes "personal use" 9 of a firearm. Second, he claims there was inadequate 10 evidence to find he had "personally" used a firearm in 11 the 1977 case. Third, he argues that the representation 12 of the presiding judge in his 1995 case that he had no 13 prior strikes estopped the state from counting his 1977 5 14 conviction as a strike. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On February 19, 2010, Petitioner filed a Motion for Discovery, seeking "Discovery on California Department of Corrections records on Petitioner's B87189-Z commitment." Parties in habeas cases are only entitled to discovery upon a showing of good cause. Bittaker v. Woodford, 331 F.3d 715, 728 (9th Cir. 2003). Petitioner only seeks discovery in relation to his contention that the state court inappropriately calculated the 1977 conviction as a "strike" against him under California's Three Strikes Law. As discussed more fully below, this is a challenge to a state court's interpretation of state law, and not cognizable in federal habeas proceedings. Thus, Petitioner has failed to show good cause as to why he should be entitled to discovery, and the Motion for Discovery is DENIED. In his traverse, Petitioner also argues, for the first time, that the trial court judge, as opposed to the jury, impermissibly determined that the 1977 conviction counted as a "strike," in violation of the Sixth Amendment and Apprendi v. New Jersey, 530 U.S. 466 (2000). (Traverse at 13-14, 20-21.) As noted above, the jury in Petitioner's 2000 trial found that Petitioner had previously been convicted of two prior serious felonies, (continued...)
36
5 4
1
The Court of Appeal concluded that Petitioner's
2 failure to object to the trial court's instructions as to 3 "personal use" meant this claim was procedurally barred 4 on habeas review. (Cal. Ct. App. Op. at 23.) As such, 5 this Court cannot consider this claim. Hill v. Roe, 321 6 F.3d 787, 789 (9th Cir. 2003). 7 8 The 2000 jury had before it an authenticated copy of 9 the transcript of the preliminary hearing in the 1977 10 crime. (Lod. Doc. 4 at 1147-48.) Included in this 11 transcript was sworn testimony of a witness that 12 Petitioner fired a rifle into a victim's stomach. (Lod. 13 Doc. 1 at 699-700.) This evidence was sufficient for the 14 jury to conclude that Petitioner "personally used" a gun 15 in the 1977 crime. 16 17 Finally, in the course of his 1995 criminal 18 proceedings, Petitioner claims the following two 19 colloquies occurred: 20 21 22 23 24 25 26 (...continued) as defined by the Three Strikes Law, and thus there was 28 no Sixth Amendment violation. 27
37
5
Petitioner: I have no strikes, your Honor, right? The Court: ... Petitioner: I want to make sure I don't have no previous strikes. There will be one next time, right? Right.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
The Court: Right. Petitioner claims that these statements estopped the use of the 1977 conviction as a serious felony strike against him in 2002. The Court of Appeal rejected this claim on
direct review, holding that Petitioner had failed to establish the elements of equitable estoppel under California law. (Ct. of App. Op. at 26-27.) On habeas
review, this Court must defer to review the California Court of Appeal's application of California law as to estoppel. See, e.g., Middleton v. Cupp, 768 F.2d 1083,
1085 (9th Cir. 1985) (noting federal habeas relief "is unavailable for alleged error in the interpretation or application of state law . . .or when a petitioner merely alleges that something in the state proceedings was contrary to general notions of fairness . . . ."); Carrizosa v. Woodford, No. 05CV1935 IEG, 2007 WL 2873629, at *6, n. 10 (S.D. Cal. Sept. 28, 2007) (equitable estoppel is a question of state law and cannot be used to support habeas relief).
The Court of Appeal's decisions as to the use of Petitioner's prior convictions to enhance his sentence were thus not contrary to or objectively unreasonable under clearly established federal law.
38
1 F. 2
Petitioner's Eighth Claim Petitioner's Eighth Claim is that the prosecution
3 knowingly used or failed to correct perjured testimony 4 and false evidence in obtaining his conviction. 5 6 A conviction obtained using knowingly perjured 7 testimony violates a defendant's due process rights if 8 "(1) the testimony (or evidence) was actually false, (2) 9 the prosecution knew or should have known that the 10 testimony was actually false, and (3) the false testimony 11 was material." Jackson v. Brown, 513 F.3d 1057, 1071-72 12 (9th Cir. 2008) (quoting Hayes v. Brown, 399 F.3d 972, 13 984 (9th Cir. 2005) (en banc)). 14 15 Petitioner argues that both Julie and Lester Robinson 16 presented false testimony at trial. He has failed, 17 however, to demonstrate any of the three above-listed 18 elements. There is no evidence that demonstrates the 19 Robinsons' testimony was actually false. While there is 20 evidence which casts doubt on the credibility of their 21 testimony, this is insufficient to establish falsity. 22 See United States v. Zuno-Arce, 339 F.3d 886, 890 (9th 23 Cir. 2003). Petitioner neither argues nor produces any 24 evidence which suggests the prosecution had any reason to 25 doubt the truth of the Robinsons' testimony. 26 27 Even if this testimony were false and the prosecution 28 knew so, though, the testimony at issue was not material.
39
1 "[F]alse testimony is material, and therefore 2 prejudicial, if there is 'any reasonable likelihood that 3 the false testimony could have affected the judgment of 4 the jury.'" Schad v. Ryan, 581 F.3d 1019, 1028 (9th Cir. 5 2009) (quoting Hayes v. Brown, 399 F.3d 972, 984 (9th 6 Cir. 2005) (en banc)). Petitioner argues the Robinsons 7 lied about ownership of the gun. Since, as the Superior 8 Court noted, "ownership and possession are legally 9 distinct," (Lodged Doc. 8 at 2), it was not an 10 unreasonable application of clearly established law for 11 the Superior Court to find the Robinsons' testimony as to 12 ownership was immaterial. 13 14 Petitioner also challenges the incorrectly recorded 15 serial number on the gun in evidence. There is no 16 dispute that the serial number as recorded was incorrect, 17 nor that the prosecutor had reason to suspect that the 18 serial number was incorrect. See Lod. Doc. 4 at 1253-54 19 (discussion of possibly incorrect serial number before 20 trial court). The error was not material, though, as 21 demonstrated by the fact that the correct identification 22 of the serial number has not yielded any exculpatory 23 evidence. As discussed above, ownership of the gun was 24 not necessary for Petitioner to be convicted of 25 possessing the gun. Thus, information tending to suggest 26 that someone other than Petitioner owned the gun was not 27 exculpatory. 28
40
1 G. 2
Petitioner's Tenth Claim Petitioner's tenth claim challenges his sentencing,
3 in that the trial court judge failed to remove "non4 proven, dismissed, and non-testified to hearsay" 5 statements contained in his probation report, and failed 6 to "add positive mitigating facts" to that report. 7 8 Before his sentencing, after his motion for a new 9 trial was denied, Petitioner, via counsel, filed a motion 10 to "compel correction" of the probation report. (Lod. 11 Doc. 1 at 543-545.) The trial court held a hearing on 12 this motion, and made several corrections to the report 13 based on a detailed, independent review of the evidence. 14 (Lod. Doc. 4 at 2015-2057.) The trial judge's conclusion 15 that the remainder of the probation report was factually 16 accurate was not an unreasonable determination of the 17 facts based on the evidence before him. See Taylor v. 18 Evans, No. CIV S-05-0860 JAM GGH P, 2009 WL 1060511, at 19 *9 (E.D. Cal. Apr. 20, 2009) (state court's determination 20 of validity of probation report is entitled to deference 21 under AEDPA). 22 23 There was no constitutional requirement that the 24 court add the alleged mitigating evidence to the 25 Probation Report, given that the evidence was presented 26 to the sentencing judge. 27 28
41
(Lodged Doc. 4 at 2037-2038).
1 3 4 H. 5
Accordingly, the state court's use of the probation
2 report did not violate clearly established federal law. Petitioner's Ninth Claim Petitioner claims he has suffered cumulative
6 prejudice from the totality of the errors in his case. 7 For the above reasons, no errors prejudiced Petitioner. 8 Thus, he did not suffer cumulative prejudice. 9 10 11 IV. CONCLUSION For the foregoing reasons, Petitioner's Motion for
12 Discovery and Petition for Writ of Habeas Corpus is 13 DENIED. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
42
Dated: March 2, 2010 VIRGINIA A. PHILLIPS United States District Judge
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