Baldwin v. Adams, No. 4:2009cv04749 - Document 21 (N.D. Cal. 2012)

Court Description: ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING MOTION FOR EVIDENTIARY HEARING AS MOOT. Signed by Judge Claudia Wilken on 8/29/2012. (ndr, COURT STAFF) (Filed on 8/29/2012)

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Baldwin v. Adams Doc. 21 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 JAMES LAMONT BALDWIN, 5 Petitioner, 6 ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING MOTION FOR EVIDENTIARY HEARING AS MOOT v. 7 No. C 09-4749 CW DERRAL ADAMS, 8 9 Respondent. ________________________________/ United States District Court For the Northern District of California 10 11 On October 6, 2009, Petitioner James Lamont Baldwin, with the 12 assistance of an attorney, filed this petition for a writ of 13 habeas corpus to vacate his conviction after a trial by jury. 14 January 11, 2011, Respondent filed an answer. 15 the Court granted Petitioner's motion for appointment of counsel. 16 On July 16, 2011, Petitioner, represented by counsel, filed a 17 traverse and moves for an evidentiary hearing to be held in the 18 event the petition is not granted. 19 On On March 25, 2011, Having considered all the papers filed by the parties and the 20 state court record, the Court grants the petition and denies the 21 motion for an evidentiary hearing as moot. 22 BACKGROUND 23 On July 22, 2004, a jury found Petitioner guilty of first 24 degree murder and being a felon in possession of a firearm. 25 jury also found true an enhancement allegation that Petitioner had 26 discharged a firearm causing great bodily injury. 27 waived a jury trial on a prior prison term allegation. 28 found the allegation true, but later granted the prosecutor's The Petitioner The court Dockets.Justia.com 1 motion to strike it. 2 Petitioner's motion for a new trial and sentenced him to a prison 3 term of twenty-five years to life for first degree murder and a 4 consecutive term of twenty-five years to life for the firearm use. 5 On August 27, 2004, the court denied On October 5, 2007, the California court of appeal affirmed 6 Petitioner's conviction. 7 App. filed Oct. 5, 2007) (unpublished). 8 California Supreme Court issued a one-sentence denial of review. 9 On May 9, 2009, Petitioner filed a petition for a writ of habeas People v. Baldwin, No. A107665 (Cal. United States District Court For the Northern District of California 10 corpus in the California Supreme Court. 11 On January 23, 2008, the Court issued a one-sentence denial. 12 13 On August 29, 2009, the The following is a summary of facts taken from the findings of the state court of appeal and from the evidentiary record. 14 On July 1, 2002, the Oakland police found the body of Terrill 15 Zachery lying between two parked cars on 91st Avenue between A and 16 B Streets. 17 head and three times to the back of the lower torso. 18 weapon was a .40 caliber Glock pistol. 19 casings found at the scene came from a single gun. 20 He had been shot five times, twice to the back of the The murder All nine .40 caliber shell Sergeant Brian Medeiros, of the Oakland Police Department's 21 homicide unit, was assigned to the case. 22 this case until September 10, 2002, when Wesley Tucker was 23 arrested standing near a car containing illegal drugs. 24 being returned to custody, Tucker offered to provide information 25 about Zachery's murder. 26 person who shot Zachery and said that Erik Gaines had driven 27 Petitioner to the scene of the murder. There were no leads in To avoid Tucker identified Petitioner as the 28 2 Tucker was released 1 without being charged with a crime. 2 212. 3 Reporter's Transcript (RT) at After obtaining this information from Tucker, Sergeant 4 Medeiros decided to conduct a search of the home of Mocha 5 Aldridge, Petitioner's girlfriend, where Petitioner resided. 6 Sergeant Medeiros explained the search as a parole search, without 7 mentioning the murder, so as not to alert Petitioner that he was 8 the target of a murder investigation. 9 September 20, 2002. The search took place on The officers found a small amount of United States District Court For the Northern District of California 10 marijuana in a shoe box and a dreadlock wig. 11 Petitioner for marijuana possession and his parole was revoked. 12 They arrested Because Tucker had told Sergeant Medeiros that Gaines had 13 been with Petitioner on the night of the shooting, Sergeant 14 Medeiros put out a bulletin within the Oakland Police Department 15 that he wanted to talk to Gaines as a witness to the Zachery 16 murder. 17 brought him to the police department on an outstanding warrant. 18 After Sergeant Medeiros asked Gaines what he knew about Zachery's 19 murder, Gaines said that he would tell Sergeant Medeiros what he 20 knew about the murder, but he would not sign papers or allow his 21 statement to be recorded because he was afraid of Petitioner's 22 family. 23 On October 22, 2002, an officer located Gaines and Sergeant Medeiros surreptitiously taped the interview. Gaines said that, shortly before the shooting, he and 24 Petitioner were cruising the neighborhood in Gaines' car. 25 passed Zachery on 91st Avenue and A Street and Petitioner said, 26 "[T]hat's that [person who] killed T." 27 Randy "Bone" Hicks, and Jermaine Fudge and Reggie Brown were 28 standing nearby. They Zachery was talking to Petitioner, who was wearing a black hoodie and 3 1 jeans, told Gaines to drive around the block and let him out. 2 Petitioner got out of the car, he put on a braided wig. 3 also noticed Petitioner had the .40 caliber pistol that he 4 regularly carried. 5 91st Avenue. 6 Hicks and Fudge running and picked them up in his car. 7 him that Petitioner walked up to Zachery with his gun out and, 8 when Zachery started to run, Petitioner shot him in the back 9 several times. As Gaines Gaines drove away, but then headed back to When he got to 91st Avenue and D Street, he saw Hicks told Zachery fell and Petitioner stood over him and United States District Court For the Northern District of California 10 "let him have it." 11 because he had come face to face with Petitioner right after the 12 shooting, and that Fudge and Brown were also afraid that 13 Petitioner would "try to kill them." 14 Gaines said that Hicks told him he was scared Gaines saw Petitioner about an hour and a half later at 90th 15 Avenue and East 14th Street. 16 Gaines complained to Petitioner that he had made his car "hot" by 17 shooting Zachery. 18 Gaines' car to the murder. 19 because Zachery had killed "Little T" and it was "murder for 20 murder." Petitioner had changed his clothes. Petitioner said that no one would connect Petitioner said he killed Zachery 21 On November 2, 2002, the gun that killed Zachery was 22 retrieved by Leonard Montalvo, a security guard at a low income 23 housing project. 24 car on South Elmhurst at D Street in Oakland. 25 male saw them, ran from them and climbed a fence to get away. 26 he was climbing the fence, his jacket got caught in the fence and 27 came off as he fell to the other side. 28 and his partner found a Glock .40 caliber firearm, which they Montalvo and his partner were on patrol in their 4 An African American As Under the jacket, Montalvo 1 turned over to the Oakland Police Department. 2 Montalvo described the person who dropped the gun as a tall, lanky 3 African American male of about nineteen years of age.1 RT 659-665. RT 665. 4 Murder charges against Petitioner were filed in April 2003. 5 Before Gaines testified at Petitioner's preliminary hearing, 6 the deputy district attorney told him his statement had been taped 7 and Gaines expressed concern about this. 8 concern about who would be in the courtroom at the preliminary 9 hearing. He also expressed The deputy district attorney told him that Petitioner United States District Court For the Northern District of California 10 and several members of his family were present, and Gaines said he 11 was afraid to testify. 12 preliminary hearing, he refused to answer questions. 13 ordered him to reply, and he testified that, at the interview, he 14 told the police what he thought they wanted to hear so that he 15 could go home. 16 inconsistent statement. 17 18 When Gaines took the stand at the The court Gaines' taped interview was read as a prior A few months before Petitioner's trial, Hicks was killed. I. Prosecutor's Case 19 A. Wesley Tucker's Testimony 20 At Petitioner's trial, Tucker testified as follows. Prior to 21 the murder, Tucker and Petitioner had been friends for 22 approximately ten years. 23 Tucker and his four-year-old son were leaving a baseball game at 24 the Coliseum when Petitioner called and asked Tucker to pick him On July 1, 2002, the day of the murder, 25 1 26 27 28 Petitioner was described by Gaines, in his interview with police, as approximately six feet, four inches tall and weighing approximately 220 to 230 pounds. Ex. 3 at 3:24-30. Petitioner was born on July 18, 1978, and he was almost twenty-four years old at the time of the crime. 2 CT 319, Probation Report. 5 1 up at the house of his girlfriend, Mocha Aldridge, who lived on 2 100th Avenue. 3 Phil Jones, and his friend Aaron Thigpin. 4 Petitioner. 5 then he and the others went to a liquor store near 90th Avenue and 6 East 14th Street. 7 Tucker's cell phone to make several calls. 8 Petitioner told someone to meet him at 90th Street and bring "his 9 40," meaning his .40 caliber pistol. Tucker agreed, but first picked up his brother, Tucker then picked up Tucker dropped his son off at his mother's house, While riding in the car, Petitioner borrowed In one call, Telephone company evidence United States District Court For the Northern District of California 10 showed that two calls were made that night from Tucker's cell 11 phone to Aldridge's home phone number. 12 9:16 p.m. and lasted two minutes; the second call was made at 13 11:59 p.m. and lasted one minute. 14 not indicate if the calls were answered by a person or by an 15 answering machine. 16 The first call was made at RT 1189; 1231. The records did RT 1231. Petitioner and Jones got into an argument, during which a 17 white Nissan Altima drove up with Tynesha Ross, another of 18 Petitioner's girlfriends, in the back seat. 19 to the car, leaned in and retrieved a gun. 20 he turned around, walked over to Jones and punched him in the 21 face. 22 yelled at him to come back and fight. 23 Tucker tried to calm Petitioner. Petitioner went over After a few seconds, Jones fled into a nearby liquor store, and Petitioner 24 including Gaines, who urged him on. 25 However, others arrived, to go for a drive with Gaines. 26 Eventually Petitioner decided Later that day, Tucker and Thigpin were standing at the 27 corner of 90th Avenue and East 14th Street, when they heard a 28 series of "pops" and saw Petitioner running up the street saying 6 1 someone was shooting at him. 2 and told him to take him to his brother Kenny's house on 71st 3 Avenue. 4 Zachery because Zachery had killed Petitioner's friend, "Little 5 T." 6 and, when he saw Zachery, he got out of the car, ran up to Zachery 7 and shot him. 8 While he was driving with Tucker, Petitioner removed a .40 caliber 9 pistol from the pocket of his black hoodie. Petitioner jumped into Tucker's car In the car, Petitioner told Tucker that he had "made" Petitioner told Tucker that he had been riding in Gaines' car The only person who witnessed this was Hicks. When they reached United States District Court For the Northern District of California 10 Petitioner's brother's house, Petitioner went inside and changed 11 into a Pendleton jacket and a Raiders hat. 12 Petitioner to a nearby gas station where Petitioner drove off with 13 another friend. 14 Then, Tucker drove Tucker then drove to 91st Avenue to see if Petitioner's story 15 was true. 16 on the ground, that the police had blocked off the crime scene and 17 that Petitioner, Thigpen, Fudge and Brown were standing in the 18 crowd of onlookers. 19 When he arrived, he saw that Zachery's body was lying After murder charges were filed against Petitioner and Tucker 20 had given his statement to the police, a person who was a friend 21 of both Tucker and Petitioner advised Tucker to leave town because 22 he was a witness to the murder. 23 probation for a prior drug felony in Alameda County, he moved to 24 Ohio because of the friend's advice. 25 arrested on a drug charge in Ohio and returned to California for 26 violating his probation. 27 California, someone told Tucker's friend, who was staying at Even though Tucker was on Eventually, Tucker was After Tucker was brought back to 28 7 1 Tucker's daughter's house, that Tucker better not come to court to 2 testify. 3 B. Erik Gaines' Statement 4 At Petitioner's trial, Gaines invoked his Fifth Amendment 5 privilege not to testify. 6 preliminary hearing testimony read to the jury, which included his 7 taped statement to Sergeant Medeiros. 8 limine motion to exclude the entirety of Gaines' statement on 9 various grounds, but did not move particularly to exclude, on The prosecutor moved to have Gaines' Defense counsel made an in United States District Court For the Northern District of California 10 grounds of double hearsay, the part of Gaines' statement in which 11 he reported that Hicks had told him he was afraid Petitioner would 12 kill him because he witnessed Petitioner kill Zachery. 13 allowed Gaines' entire statement to be read to the jury. The judge 14 C. Petitioner's Phone Calls from Jail 15 While he was in jail for the marijuana charge and parole 16 violation, Petitioner had several telephone conversations with 17 Aldridge. 18 telephone calls were taped. 19 became angry at Aldridge and used pejorative language toward her. 20 Petitioner told her that someone was "snitching," that he was 21 being investigated by homicide officers and that he and Aldridge 22 should leave town. 23 too" and the authorities would offer her "low term 25." 24 point, Aldridge connected Petitioner to an unidentified third 25 party and Petitioner instructed this person to "handle that shit," 26 to "check your surroundings," and not to let anyone send him that 27 "bizat," because "there's somebody in our circle snitching." A large sign over the phone warned inmates that During two taped calls, Petitioner He also said that she could "have been gone 28 8 At one 1 The prosecutor requested that the two taped calls, in their 2 entirety, be played for the jury. 3 suppress the tapes on several grounds, including California 4 Evidence Code section 352, which provides for the exclusion of 5 evidence if its probative value is outweighed by its prejudice. 6 After a hearing on the motion, the trial court admitted the entire 7 tape of the first telephone conversation. 8 portions of the second conversation, mostly on grounds of 9 redundancy. United States District Court For the Northern District of California 10 Defense counsel moved to The court redacted RT 2-69. II. Defense Case 11 A. Jermaine Fudge's Testimony 12 Fudge testified that, on the night of July 1, 2002, he was 13 hanging out with Hicks on 91st Avenue and saw Zachery walking down 14 91st Avenue, followed by another person wearing a black hoodie. 15 Fudge said the person was shorter and thinner than Petitioner. 16 saw the person in the black hoodie walk behind a van and start 17 shooting. 18 Hicks were picked up by Gaines and they discussed why Zachery had 19 been shot, but Hicks never said he saw the killer. Then he and everyone else ran away. He Later, he and 20 B. Aaron Thigpen's Testimony 21 Thigpen also testified in Petitioner's defense. He stated 22 that he, Tucker and Jones were driving around on the night of July 23 1, 2002. 24 and he did not see Petitioner until later that week. 25 evening, while he was hanging out with Tucker around a liquor 26 store at 90th Avenue, they heard what sounded like firecrackers. 27 He walked up the street and came to the crime scene. 28 testified that Tucker and Petitioner had been good friends, but He stated that Petitioner was never in the car with them 9 Later that Thigpen 1 that they had had a falling out. 2 not like Petitioner, and wanted to "pay him back." Tucker told Thigpen that he did 3 C. Germain Tapia's Testimony 4 Germain Tapia lived on 91st Avenue between A and B Streets. 5 He was located by the defense and subpoenaed to testify near the 6 end of the trial. 7 2002, he was working on a car at 91st Avenue and A Street. 8 11:00 p.m., he saw a person in a blue hoodie walk by. 9 not see his face, but he was shorter and skinnier than Petitioner He testified that, on the night of July 1, United States District Court For the Northern District of California 10 and walked with a limp. 11 approximately ten shots. 12 At Tapia could inside his house. A few minutes later Tapia heard He saw two men run past, and then he ran 13 D. Alibi Defense 14 Aldridge testified that she and Petitioner had arranged to go 15 to the home of Petitioner's mother, Deborah Baldwin, in Modesto on 16 June 30, 2002, the day before the murder. 17 arrived in Oakland in a rented car to pick them up, but Petitioner 18 was out with friends and could not be located. 19 Modesto with Petitioner's family, and returned later that evening 20 in the rented car to get Petitioner. 21 that evening and stayed through the July 4th holiday. 22 Petitioner's mother Aldridge drove to They arrived in Modesto late Cecilia Franklin, a good friend of Deborah Baldwin's, 23 testified that she had seen Petitioner at Deborah Baldwin's house 24 on June 30th and July 1st. 25 Deborah Baldwin's, testified that she recalled seeing Petitioner 26 at his mother's house the evening of July 1st. 27 28 Denise Pitts, another friend of Deborah Baldwin testified that she rented a car from Enterprise Rent-A-Car in Modesto on June 30th, and drove to 10 1 Oakland, arriving at noon. 2 drove back to Modesto with Aldridge. 3 Baldwin let Aldridge take the car back to Oakland to pick up 4 Petitioner. 5 they stayed at Deborah Baldwin's house until the evening of July 6 4th. 7 had been barred from renting from Enterprise since 2001 because of 8 an outstanding debt and that Franklin had rented the car for her 9 on June 28th. Petitioner could not be found, so she Later that day, Deborah Aldridge returned with Petitioner late that night and On cross-examination, Deborah Baldwin acknowledged that she United States District Court For the Northern District of California 10 Petitioner testified that he and Aldridge drove to his 11 mother's house in a rented car, arriving in Modesto at 8:30 p.m. 12 on June 30th, 2002, and that they stayed there until the evening 13 of July 4th. 14 conversations with Aldridge, he stated that he did not believe he 15 was being investigated for murder, that his reference to "low term 16 25" in the call was not to the twenty-five-years-to-life sentence 17 for murder, but was a reference to a twenty-five month term for a 18 drug offense that Aldridge would have to serve if she was 19 convicted and got the low term of three years for selling 20 marijuana. 21 was in regard to his marijuana stash. 22 party on the phone was "Boo" or "Booby," that he and Boo had 23 agreed to become partners in a record business, and that his 24 directions to Boo to "handle that shit" and "check your 25 surroundings" referred to record business arrangements. 26 that his reference to a "b'zat" was not to a gun, but to cash that 27 Boo owed him; he was telling Boo not to send the cash to Aldridge 28 because he was concerned that she would spend it. When Petitioner was asked about his taped jail phone He also explained that his reference to "snitching" 11 He stated that the third He stated 1 Petitioner denied shooting Zachery and testified that he had 2 no ill will towards him. 3 falling out sometime before July 2002 because he had an affair 4 with the mother of one of Tucker's children and had a fight with 5 Tucker's brother, Jones. 6 III. Prosecutor's Rebuttal 7 He stated that he and Tucker had a Jason Tardiff, Enterprise's custodian of records, testified 8 that a silver Pontiac Grand Am had been rented to Franklin on July 9 2, 2002 at 5:44 p.m., the day after the murder. The car was United States District Court For the Northern District of California 10 rented through August 12, 2002. 11 Camry on June 19, 2002, and returned it on June 24, 2002. 12 prosecutor asked Tardiff whether he had asked Tardiff to check all 13 cars rented at all times in June and July 2002 by Franklin. 14 1152. 15 explaining that he had only been given two contract numbers to 16 check. 17 that he had checked every car Franklin had rented, the one on June 18 19th and the one on July 2nd, and that she had rented nothing in 19 between. The RT Tardiff responded in the negative to this question, RT 1152. In his closing argument, the prosecutor stated RT 1235. 20 21 Franklin had also rented a Toyota LEGAL STANDARD A federal court may entertain a habeas petition from a state 22 prisoner "only on the ground that he is in custody in violation of 23 the Constitution or laws or treaties of the United States." 24 U.S.C. § 2254(a). 25 Penalty Act (AEDPA), a district court may not grant a petition 26 challenging a state conviction or sentence on the basis of a claim 27 that was reviewed on the merits in state court unless the state 28 court’s adjudication of the claim: "(1) resulted in a decision 28 Under the Antiterrorism and Effective Death 12 1 that was contrary to, or involved an unreasonable application of, 2 clearly established federal law, as determined by the Supreme 3 Court of the United States; or (2) resulted in a decision that was 4 based on an unreasonable determination of the facts in light of 5 the evidence presented in the State court proceeding." 6 § 2254(d). 7 law if it fails to apply the correct controlling authority, or if 8 it applies the controlling authority to a case involving facts 9 materially indistinguishable from those in a controlling case, but 28 U.S.C. A decision is contrary to clearly established federal United States District Court For the Northern District of California 10 nonetheless reaches a different result. 11 1062, 1067 (9th Cir. 2003), overruled on other grounds by Lockyer 12 v. Andrade, 538 U.S. 63 (2003). 13 Clark v. Murphy, 331 F.3d The only definitive source of clearly established federal law 14 under 28 U.S.C. § 2254(d) is the holdings of the Supreme Court as 15 of the time of the relevant state court decision. 16 Taylor, 529 U.S. 362, 412 (2000). 17 may no longer be overturned on habeas review simply because of a 18 conflict with circuit-based law, circuit decisions may still be 19 relevant as persuasive authority to determine whether a particular 20 state court holding is an "unreasonable application" of Supreme 21 Court precedent or to assess what law is "clearly established." 22 Clark, 331 F.3d at 1070-71. 23 Williams v. Although a state court decision To determine whether the state court’s decision is contrary 24 to, or involved an unreasonable application of, clearly 25 established law, a federal court looks to the decision of the 26 highest state court that addressed the merits of a petitioner’s 27 claim in a reasoned decision. 28 669 n.7 (9th Cir. 2000). LaJoie v. Thompson, 217 F.3d 663, If the state court only considered state 13 1 law, the federal court must ask whether state law, as explained by 2 the state court, is "contrary to" clearly established governing 3 federal law. 4 2001). 5 Lockhart v. Terhune, 250 F.3d 1223, 1230 (9th Cir. The standard of review under AEDPA is somewhat different 6 where the state court gives no reasoned explanation of its 7 decision on a petitioner's federal claim. 8 such a decision, a federal court should conduct “an independent 9 review of the record” to determine whether the state court’s When confronted with United States District Court For the Northern District of California 10 decision was an objectively unreasonable application of clearly 11 established federal law. 12 1198 (9th Cir. 2006); Himes v. Thompson, 336 F.3d 848, 853 (9th 13 Cir. 2003). Plascencia v. Alameida, 467 F.3d 1190, 14 Even if the state court's ruling is contrary to or an 15 unreasonable application of Supreme Court precedent, that error 16 justifies habeas relief only if the error resulted in "actual 17 prejudice." 18 Thus, habeas relief is granted only if the state court's error had 19 a "substantial and injurious effect or influence in determining 20 the jury's verdict." 21 22 Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). Id. DISCUSSION In his direct appeal in state court, Petitioner asserted the 23 following claims: (1) the prosecutor engaged in numerous instances 24 of misconduct, violating his due process rights to a fair trial; 25 (2) the trial court abused its discretion under California 26 Evidence Code section 352 by failing to redact further the 27 recorded telephone calls between Petitioner and Aldridge, 28 14 1 violating his due process rights to a fair trial;2 (3) the trial 2 court erred by admitting evidence of threats and violence against 3 witnesses that were not made or instigated by Petitioner; (4) the 4 trial court failed adequately to investigate juror misconduct; and 5 (5) the cumulative effect of these errors deprived Petitioner of 6 due process and a fair trial. 7 counsel was ineffective. 8 relief in state court. 9 reasoned decision on these claims was the state court of appeal on Petitioner also argued that defense In addition, Petitioner sought habeas The only state court that issued a United States District Court For the Northern District of California 10 Petitioner's direct appeal. 11 I. Prosecutorial Misconduct and Ineffective Assistance of Counsel 12 A. Legal Standard 13 A defendant's due process rights are violated when a 14 prosecutor's misconduct renders a trial "fundamentally unfair." 15 Darden v. Wainwright, 477 U.S. 168, 181 (1986). 16 first issue is whether the prosecutor’s conduct was improper; if 17 so, the next question is whether such conduct infected the trial 18 with unfairness. 19 2005). Under Darden, the Tan v. Runnels, 413 F.3d 1101, 1112 (9th Cir. 20 Even if the prosecutor's actions constituted misconduct, when 21 a curative instruction is issued, the court presumes that the jury 22 has disregarded the misconduct and that no due process violation 23 occurred. Greer v. Miller, 483 U.S. 756, 766 n.8 (1987); Darden, 24 2 25 26 27 28 In his traverse, Petitioner concedes this claim due to Alberni v. McDaniel, 458 F.3d 860, 865 (9th Cir. 2006), which held that AEDPA bars federal courts from entertaining such claims because "the Supreme Court has never expressly held that it violates due process to admit" propensity evidence, no matter how improper the use to which it is put. Traverse at 67. The Court, therefore, does not address this claim. 15 1 477 U.S. at 181-82 (the Court condemned egregious, inflammatory 2 comments by the prosecutor but held that the trial was fair 3 because curative instructions were given by the trial judge). 4 Other factors which the court may take into account in 5 determining whether prosecutorial misconduct rises to the level of 6 a due process violation are (1) the weight of the evidence of 7 guilt, see United States v. Young, 470 U.S. 1, 19 (1985); 8 (2) whether the misconduct was isolated or part of an ongoing 9 pattern, see Lincoln v. Sunn, 807 F.2d 805, 809 (9th Cir. 1987); United States District Court For the Northern District of California 10 (3) whether the misconduct related to a critical part of the case, 11 see Giglio v. United States, 405 U.S. 150, 154 (1972); and 12 (4) whether the prosecutor's comment misstated or manipulated the 13 evidence, see Darden, 477 U.S. at 182. 14 To establish ineffective assistance of counsel, a petitioner 15 must show that (1) counsel made errors so serious that counsel was 16 not functioning as the counsel guaranteed a defendant by the Sixth 17 Amendment, and (2) the deficient performance prejudiced the 18 defense such that "there is a reasonable probability that, but for 19 counsel's unprofessional errors, the result of the proceeding 20 would have been different." 21 668, 694 (1984). 22 sufficient to undermine confidence in the outcome. 23 Hatcher, 231 F.3d 640, 644 (9th Cir. 2000) (citing Strickland, 466 24 U.S. at 687). 25 Strickland v. Washington, 466 U.S. A reasonable probability is a probability Loveland v. A difference of opinion as to trial tactics does not 26 constitute denial of effective assistance, United States v. Mayo, 27 646 F.2d 369, 375 (9th Cir. 1981), and tactical decisions are not 28 ineffective assistance simply because in retrospect better tactics 16 1 are known to have been available, Bashor v. Risley, 730 F.2d 1228, 2 1241 (9th Cir. 1984). 3 deference when: (1) counsel in fact bases trial conduct on 4 strategic considerations; (2) counsel makes an informed decision 5 based upon investigation; and (3) the decision appears reasonable 6 under the circumstances. 7 (9th Cir. 1994). 8 automatically immunize an attorney's performance from Sixth 9 Amendment challenges. Tactical decisions of trial counsel deserve Sanders v. Ratelle, 21 F.3d 1446, 1456 A label of "trial strategy" does not United States v. Span, 75 F.3d 1383, 1389- United States District Court For the Northern District of California 10 90 (9th Cir. 1996). 11 of the law, resulting in the omission of his client's only 12 defense, is not a strategic decision and amounts to ineffective 13 assistance of counsel. 14 433 F.3d 1148, 1161-62 (9th Cir. 2006). 15 For example, an attorney's misunderstanding Id.; see also, United States v. Alferahin, Counsel's decision not to request a limiting instruction on 16 damaging evidence is within the acceptable range of strategic 17 tactics employed to avoid drawing attention to damaging testimony. 18 Musladin v. Lamarque, 555 F.3d 830, 845-46 (9th Cir. 2009). 19 However, once the prosecutor draws the jury's attention to the 20 damaging testimony in closing argument and asks jurors to draw the 21 inference that a limiting instruction would have forbidden, the 22 decision not to request a limiting instruction will not be 23 shielded as within the range of reasonable strategy. Id. at 847. 24 B. Analysis 25 Although the state appellate court ruled that the majority of 26 Petitioner's prosecutorial misconduct claims were waived because 27 defense counsel did not object, it addressed their merits to 28 determine whether counsel's failure to object constituted 17 1 ineffective assistance of counsel, stating that "if the 2 [prosecutor's] challenged statement or argument was not misconduct 3 then, of course, it would not be outside the range of competence 4 for counsel to fail to object." 5 slip op. at 10 (Cal. App. October 5, 2007). 6 People v. Baldwin, No. A107665, In his federal petition, Petitioner repeats the claims of prosecutorial misconduct and ineffective assistance of counsel. 8 Respondent likewise argues here that most of the prosecutorial 9 misconduct claims are forfeited because defense counsel failed to 10 United States District Court For the Northern District of California 7 object to them at trial and the contemporaneous objection rule is 11 an adequate and independent ground constituting a procedural bar 12 to consideration of the issue. 13 the prosecutorial misconduct claims because Petitioner may show 14 cause for a procedural default by establishing constitutionally 15 ineffective assistance of counsel and prejudice by demonstrating a 16 reasonable probability that, but for counsel's unprofessional 17 conduct, the result of the proceedings would have been different. 18 Murray v. Carrier, 477 U.S. 478, 488 (1986); Vansickel v. White, 19 166 F.3d 953, 958 (9th Cir. 1999). 20 result of the proceedings was fundamentally unfair or unreliable. 21 Id. 22 prosecutorial misconduct claims simultaneously with the 23 ineffective assistance of counsel claims because, if the 24 prosecutor did not commit misconduct, counsel's failure to object 25 would not constitute ineffective assistance. 26 27 28 This Court addresses the merits of Petitioner must show that the Like the state court, this Court will address the 1. Appeal to Passion and Prejudice of Jury Petitioner argues that the prosecutor improperly argued that the jury should convict him because his conviction would protect 18 1 the community by deterring future law-breaking and preserving 2 civil order. 3 In his rebuttal closing argument, the prosecutor stated, 4 "With this kind of evidence, if you find this defendant not 5 guilty, I mean, it's almost like it's open season in East Oakland. 6 This is what it is." 7 The last words the prosecutor said in his rebuttal were: 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RT 1249. Defense counsel did not object. It's not a crusade against bad guys in Oakland. It is this case -- this is homicide in this case in this area, and this is the way it happens. If you permit him to get away with this, you know, it's essentially lawlessness out there. Don't subject the citizens. Don't send that message out there. Treat this case individually. This is our facts on this defendant. Understand the context. RT 1249-50. Defense counsel did not object to this either. A prosecutor may not urge the jurors to convict in order to protect community values, preserve civil order, or deter future law-breaking. United States v. Sanchez, 659 F.3d 1252, 1256 (9th Cir. 2011); United States v. Weatherspoon, 410 F.3d 1142, 1149 (9th Cir. 2005). The vice in such an argument is that it increases the possibility that the defendant will be convicted for reasons unrelated to his own guilt. Sanchez, 659 F.3d at 1257 (prosecutor committed misconduct in suggesting to jury that accepting defendant's duress defense would be tantamount to sending a memo to all drug couriers to use the duress defense and would lead to increased drug trafficking). In Weatherspoon, the prosecutor repeatedly stated in his closing argument that finding the defendant guilty of being a felon in possession of a weapon would protect individuals in the community. The court stated: 19 410 F.3d at 1149. That entire line of argument . . . was improper. We have consistently cautioned against prosecutorial statements designed to appeal to the passions, fears and vulnerabilities of the jury. . . . Jurors may be persuaded by such appeals to believe that, by convicting a defendant, they will assist in the solution of some pressing social problem. The amelioration of society's woes is far too heavy a burden for the individual criminal defendant to bear. 1 2 3 4 5 6 7 Id. The state appellate court found that the prosecutor's remarks 8 did not constitute misconduct. 9 prosecutor himself undermined the prejudicial effect of these The court reasoned that "the United States District Court For the Northern District of California 10 remarks by cautioning the jury that, 'It's not a crusade' and that 11 it must '[t]reat this case individually.'" 12 A107665, slip op. at 22. 13 would not have incited the jurors' passions because "the 14 prosecutor's brief references to lawlessness and the need to send 15 a message to the citizens of the community were preceded by 16 lengthy and detailed argument focused entirely upon the evidence." 17 Id. at 22-23. 18 misconduct, the court found that counsel's failure to object was 19 not ineffective assistance. 20 21 22 23 24 People v. Baldwin, No. The court also reasoned that the remarks Because the prosecutor's remarks were not Id. at 22. Respondent relies on Donnelly v. DeChristoforo, 416 U.S. 637, 646-47 (1974), where the Court stated, A court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through a lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations. 25 26 27 28 However, DeChristoforo is inapplicable here because the meaning of the prosecutor's remarks was clear and unambiguous. The prosecutor's statements were improper and constituted misconduct. 20 1 Defense counsel declares that he did not object because he 2 viewed "this broad-based argument as generic rhetoric, and not 3 particularly inflammatory. 4 the implications of the jury's decision. 5 objectionable than other things the prosecutor said." 6 Petitioner's Ex. B, Declaration of Theodore Berry, trial counsel, 7 at ¶ 16. 8 made a tactical decision not to object. 9 counsel's statement shows that he failed to recognize the He was not arguing the evidence, just It certainly was less Respondent argues that counsel's statement shows that he To the contrary, defense United States District Court For the Northern District of California 10 illegality and prejudicial effect of the prosecutor's statement. 11 Furthermore, the prosecutor's improper statements were made 12 at the end of his rebuttal and so they were the last words that 13 the jury heard. 14 1996) (prejudicial evidence at end of trial without a limiting 15 instruction magnifies the prejudicial effect because it is 16 freshest in the mind of the jury), superseded by statute on other 17 grounds as stated in Van Tran v. Lindsey, 212 F.3d 1143 (9th Cir. 18 2000). 19 passions of the jury were likely to have a substantial prejudicial 20 effect, defense counsel's failure to object constituted deficient 21 performance. 22 misconduct and ineffective assistance of counsel. 23 24 See Crotts v. Smith, 73 F.3d 861, 867 (9th Cir. Because the prosecutor's statements appealing to the These facts support a finding of prosecutorial 2. Threats and Violence Against Witnesses Petitioner contends that the court erred by admitting 25 evidence of threats and violence against witnesses. 26 argues that the prosecutor committed misconduct by suggesting, 27 despite the lack of evidence to support such a conclusion, that 28 Petitioner was responsible for the threats and violence. 21 He also He 1 claims that defense counsel was ineffective in failing to object 2 and request curative instructions. 3 Under California law, absent evidence that the defendant made 4 or authorized threats to witnesses, the evidence of such threats 5 is inadmissible to prove consciousness of guilt. 6 57 Cal. 2d 538, 566 (1962). 7 evidence that a witness is afraid to testify because he or she 8 fears retaliation is admissible as relevant to the credibility of 9 that witness. People v. Terry, However, California cases hold that People v. Burgener, 29 Cal. 4th 833, 869 (2003). United States District Court For the Northern District of California 10 For this purpose, it is not necessary to link the threats to the 11 defendant. 12 (1994). 13 prejudicial because it appeals to the jury's sympathies, arouses 14 its sense of horror, provokes its instinct to punish, or otherwise 15 may cause a jury to base its decision on something other than the 16 evidence. 17 1996). 18 probative value towards credibility, unless the evidence bears 19 directly on a specific credibility issue regarding the threatened 20 witness. 21 a witness' inconsistent statements, delays in testifying, or even 22 courtroom demeanor indicating intimidation." 23 24 People v. Gutierrez, 23 Cal. App. 4th 1576, 1588 However, evidence of threats to witnesses can be highly United States v. Thomas, 86 F.3d 647, 654 (7th Cir. Furthermore, "threat evidence has extremely limited For example, threat evidence can be relevant to explain Id. a. Threats Against Wesley Tucker Petitioner points out that Tucker was permitted to testify to 25 threats that had been made by someone he did not identify. 26 prosecutor asked Tucker whether he was concerned that something 27 might happen to him in jail or that members of Petitioner's family 28 would hurt him or his family, and Tucker replied, "Yes." 22 The RT 211- 1 12. 2 instigated any threats. 3 limiting instruction regarding the threat evidence. 4 claims the trial court abused its discretion in admitting such 5 prejudicial evidence. There was no evidence that Petitioner threatened Tucker or Trial counsel did not object or ask for a Petitioner 6 The state appellate court denied the abuse of discretion 7 claim on the ground that, although evidence of third-party threats 8 was inadmissible to prove Petitioner's consciousness of guilt, it 9 was admissible to show Tucker's state of mind, which was relevant United States District Court For the Northern District of California 10 to his credibility. 11 discretion claim was waived because defense counsel did not 12 request a limiting instruction and the trial court had no duty to 13 give such an instruction without a request. 14 The state court also held that the abuse of Citing Dudley v. Duckworth, 854 F.2d 967, 970, 972 (7th Cir. 15 1988) and Estelle v. McGuire, 502 U.S. 62, 75 (1991), Petitioner 16 argues that the unrestricted admission of evidence that unnamed 17 third parties had made threats against Tucker and his family, 18 which allowed the prosecution to argue that Petitioner was 19 "intimidating and terrorizing witnesses including to this day," so 20 infused his trial with unfairness that it denied him due process 21 of law. 22 In Estelle, the Supreme Court stated that due process 23 guarantees "the fundamental elements of fairness in a criminal 24 trial." 25 that violate fundamental fairness is defined very narrowly and, 26 beyond the specific guarantees in the Bill of Rights, the due 27 process clause has limited application. 502 U.S. at 70. However, the category of infractions 28 23 Id. 1 In Dudley, the court stated that, although the admissibility 2 of evidence is generally a matter of state law, a habeas claim may 3 be stated where "an erroneous evidentiary ruling is of such 4 magnitude that the result is a denial of fundamental fairness." 5 Id. at 970. 6 threats was intended more to prejudice the defendants, including 7 petitioner, than to explain away any nervousness of the witness.” 8 854 F.2d at 972. 9 effect of the testimony is weighed against its necessity, even In Dudley, the court concluded "that the evidence of The court continued, "When the prejudicial United States District Court For the Northern District of California 10 assuming the witness's nervousness was extreme, . . . we find that 11 the resulting prejudice mandates relief. . . . [W]e find that the 12 trial court's ruling allowing the testimony to stand 'is of such 13 magnitude that the result is a denial of fundamental fairness.'" 14 Id. 15 197 F.3d 1021, 1031 (9th Cir. 1999). 16 500, 515 (9th Cir. 2011), the Ninth Circuit pointed out that, for 17 purposes of habeas relief, Dudley is not federal law as determined 18 by the Supreme Court of the United States. 19 stated that Dudley could be pertinent to habeas review to the 20 extent it persuasively illuminated Supreme Court precedent. 21 In the Ninth Circuit, only if there are no permissible 22 inferences that the jury may draw from the evidence can its 23 admission violate due process. 24 918, 920 (9th Cir. 1991). 25 334 F.3d 862, 887 (9th Cir. 2003), the court held that the 26 admission of evidence that knives were found in the defendant's 27 residence was a due process violation, where the jury could draw 28 no permissible probative inference from it because the murder Ninth Circuit authority is in accord. See Henry v. Kernan, In Hayes v. Ayers, 632 F.3d However, the court Id. Jammal v. Van de Kamp, 926 F.2d For instance, in Alcala v. Woodford, 24 1 weapon was a knife with a different design, which was sold 2 separately and was not owned by the defendant. 3 As noted, the state appellate court here concluded that the 4 trial court properly admitted the evidence of threats against 5 Tucker to show Tucker's state of mind, which it found relevant to 6 his credibility. 7 The admission of the evidence of threats against Tucker was 8 prejudicial to Petitioner in that the jury was not instructed not 9 to consider it for the impermissible purpose of Petitioner's People v. Baldwin, No. A107665, slip op. at 33. United States District Court For the Northern District of California 10 consciousness of guilt, because there was no evidence that he was 11 responsible for the threats. 12 was likely the jury used the evidence for the improper purpose of 13 consciousness of guilt, rather than for the acceptable purpose of 14 Tucker's credibility. 15 evidence, its admission may have made it unlikely that Petitioner 16 received a fair trial. 17 the evidence to ascertain Tucker's credibility, the Court finds 18 that no due process violation occurred. 19 below, the admission of this evidence without a limiting 20 instruction and the prosecutor's exploitation of it contribute to 21 the finding of ineffective assistance of counsel. 22 Without a limiting instruction, it Due to the highly prejudicial nature of the However, because the jury could have used Nonetheless, as discussed Petitioner also argues here, as he did in his state habeas 23 petition, that counsel's failure to request a limiting instruction 24 as to Tucker's threats testimony constituted deficient 25 performance.3 26 27 28 In his declaration, defense counsel states that "it 3 Because this claim was raised only in the state habeas petition, the state appellate court did not address it on Petitioner's direct appeal. Thus, there is no reasoned state court opinion addressing this claim. 25 1 would have been appropriate to request that the evidence be 2 limited [to the witness's state of mind], but the overall 3 significance of the failure to limit the use of the evidence is, 4 in my opinion, of little value." 5 argues that counsel's statement shows that his failure to request 6 a limiting instruction was a strategic decision to avoid 7 attracting attention to the evidence. 8 concedes that it would have been appropriate to seek an 9 instruction and indicates that he failed to ask for it, not to Berry Dec. at ¶ 7. Respondent To the contrary, counsel United States District Court For the Northern District of California 10 avoid attracting attention to the evidence, but because he thought 11 limiting instructions were of little value or perhaps that the 12 evidence was of limited value to the prosecution. 13 Given the prejudicial effect of threat evidence, and the fact 14 that courts have recognized the value of instructions limiting how 15 threats can be used as evidence, counsel was incorrect. 16 claim supports a finding of ineffective assistance of counsel. 17 18 This b. Evidence of the Killing of Randy Hicks In a taped statement that was admitted at trial, Gaines 19 stated that, immediately after the shooting, Hicks told him that 20 Petitioner shot Zachery, that he was standing near Zachery when he 21 was shot, and that he was afraid Petitioner might shoot him, too, 22 because he was a witness. 23 witnesses that Hicks had been killed a few months before 24 Petitioner's trial. 25 by: (1) admitting evidence of Hicks' statement to Gaines because 26 it was double hearsay and prejudicial and (2) allowing evidence 27 that Hicks was killed before the trial because it was unconnected 28 to Petitioner and was prejudicial. The court allowed testimony from other Petitioner argues that the trial court erred 26 Petitioner also argues 1 ineffective assistance of counsel in that his attorney failed to 2 offer evidence that Hicks' testimony would have exculpated 3 Petitioner, so there would have been no reason for Petitioner to 4 have had Hicks killed. 5 6 (1) Gaines' Taped Statement The state appellate court held that Gaines' taped statement 7 to the police was admissible because Gaines had invoked his Fifth 8 Amendment privilege at trial, the prosecutor properly introduced 9 Gaines' preliminary hearing testimony4 and the taped police United States District Court For the Northern District of California 10 interview had been admitted at the preliminary hearing as a prior 11 inconsistent statement. 12 In his declaration, Petitioner's trial counsel states: 13 Although I made an in limine motion to exclude the entirety of Gaines' taped statement on various grounds, I did not specifically object to the introduction of the hearsay statements which Gaines claimed had been made to him by Randy Hicks. It now seems clear to me that the taped statement could have been subject to a motion to have them redacted; I don’t know why I did not request that at the time. 14 15 16 17 18 19 Berry Dec. at ¶ 13. Respondent argues that any hearsay objection by defense 20 counsel to Gaines quoting Hicks' statement that Petitioner had 21 killed Zachery and that Hicks was in fear for his life would have 22 been overruled by the court because Hicks' statement was 23 24 25 26 27 28 4 California Evidence Code §§ 1291 and 1294 provide that a witness's preliminary hearing testimony, including a prior inconsistent statement, is not made inadmissible by the hearsay rule if the witness is unavailable at trial. 27 1 admissible under the spontaneous declaration exception to the 2 hearsay rule in California Evidence Code § 1240.5 3 Hicks' reported statement was double hearsay and does not 4 appear to qualify as a spontaneous statement. 5 Petitioner had killed Zachery was extremely prejudicial. 6 statement that he was in fear of his life was not probative of 7 anything because it could not be used to prove Petitioner's 8 consciousness of guilt and, because Hicks did not testify, it had 9 no probative value regarding Hicks' credibility. His statement that His Although the United States District Court For the Northern District of California 10 state court ruled that evidence of Hicks' murder was relevant to 11 other witnesses' states of mind, because of the extreme prejudice 12 resulting from Hicks' hearsay statement, counsel's failure to 13 object to that portion of Gaines' interview or to request a 14 limiting instruction regarding it, supports a finding of deficient 15 representation. 16 17 (2) Evidence That Hicks Was Killed Evidence that Hicks had been killed was introduced through 18 the testimony of two witnesses. 19 questions, and over defense counsel's objection of irrelevance, 20 which was overruled, Sergeant Medeiros testified that Hicks was 21 killed on February 4, 2004, in East Oakland, a five minute drive 22 from where Zachery was killed. 23 prosecutor's question, Fred Martin, a friend of Zachery's, 24 testified that he knew that Hicks had been killed. 25 26 27 28 In response to the prosecutor's RT 739. 5 In response to the RT 304. California Evidence Code section 1240 provides that a statement is not made inadmissible by the hearsay rule if it purports to narrate, describe or explain an event perceived by the declarant and was made spontaneously while the declarant was under the stress of excitement caused by such perception. 28 1 In his closing, the prosecutor stated: 2 And I think there was testimony regarding Bone [Hicks] is the only one that saw it. And Bone saw this and Bone knows who killed him. Bone knows the defendant did this. Bone was killed, shot to death. You don’t think--you don't think these witnesses currently here know this? This is admissible for state of mind of these witnesses. 3 4 5 6 7 RT 1185. The state appellate court held that the claim that the trial 8 court erred by allowing witnesses to testify that Hicks had been 9 killed was waived because defense counsel failed to object. In United States District Court For the Northern District of California 10 denying the claim of prosecutorial misconduct, the court found 11 that the prosecutor, in his closing argument, specifically stated 12 that the witnesses' awareness that Hicks had been killed was 13 relevant to their state of mind and he did not imply that 14 Petitioner had been involved in the killing of Hicks. 15 Nonetheless, the implication of the prosecutor's statement 16 was that Hicks was killed because he knew that Petitioner killed 17 Zachery and Petitioner must have been involved in causing Hicks' 18 death. 19 from making this inference. 20 jurors' knowledge of Hicks' death makes witnesses more or less 21 credible, or why. 22 attenuated. 23 24 25 26 27 28 A limiting instruction was necessary to prevent the jury It is not at all clear whether the Thus the relevance of this evidence is In his declaration, Berry states: The prosecutor adduced evidence that Randy "Bone" Hicks was murdered in February, 2004 -- just months prior to the trial. In my view, this evidence possessed limited relevance and its introduction could have been taken to mean that Baldwin had something to do with Hicks' murder. The purpose of the evidence, as I viewed it at the time, was to demonstrate why Hicks was not a witness. I did not view it as contrary to the interests of my client. 29 1 2 Berry Dec. at ¶ 10. Respondent interprets defense counsel's statement to mean 3 that he did not ask for a limiting instruction to avoid drawing 4 further attention to Hicks' fear of reprisal. 5 nothing of the kind. 6 did not object because he did not view the evidence of Hicks' 7 murder to be damaging to Petitioner's defense and he thought 8 evidence of Hicks' death explained his absence as a witness. 9 Hicks' failure to testify had to be explained, counsel could have Counsel says As counsel makes plain in his statement, he If United States District Court For the Northern District of California 10 stipulated that Hicks was unavailable. 11 counsel did not appreciate the prejudice caused by the combination 12 of Gaines' unrebutted double hearsay statement that Hicks said 13 Petitioner was the shooter, that Hicks said he was afraid that 14 Petitioner might kill him and the fact that Hicks was killed a few 15 months before Petitioner's trial. 16 instruction to limit the effect of this prejudicial testimony 17 supports the claim of ineffective assistance of counsel. 18 Apparently, defense Counsel's failure to request an On a related point, Petitioner argues that defense counsel 19 was deficient for failing to introduce evidence that Hicks had 20 told the police that Zachery's shooter was someone he did not 21 know, and that he knew Petitioner. 22 reason to want Hicks killed. 23 argument. 24 25 26 27 Therefore, Petitioner had no Respondent does not address this Petitioner's trial counsel states: I did not attempt to introduce evidence that the statements Randy Hicks had given the police were actually exculpatory of Mr. Baldwin, nor that Hicks and Baldwin had always been close friends. At the time, the effort to introduce such evidence would have appeared peripheral to the issues of the trial. 28 30 1 Berry Dec. at ¶ 14. 2 counter the inference that Petitioner had had Hicks killed 3 supports Petitioner's claim of ineffective assistance of counsel. 4 Counsel's explanation that the issue was peripheral does not 5 amount to a strategic decision. 6 7 Counsel's failure to present this evidence to c. "Star Chamber" Statement Petitioner argues that the prosecutor's statement, in his closing argument, that Petitioner "conducted his own star chamber, 9 including intimidating and terrorizing witnesses including to this 10 United States District Court For the Northern District of California 8 day," RT 1168, was improper because it amounted to an unsupported 11 representation that Petitioner personally participated in or 12 instigated threats against or intimidation of witnesses. 13 implies that such acts showed consciousness of guilt, an 14 impermissible purpose absent evidence of Petitioner's involvement, 15 rather than an unexplained effect on the credibility of witnesses. 16 Petitioner also contends that counsel should have objected to this 17 comment and requested an instruction explaining the relevance of 18 the evidence of third party threats. 19 correctly stated that the prosecutor's remark "could be construed 20 as suggesting that defendant did personally participate in or 21 authorize threats or intimidation of witnesses, and was 22 objectionable on that basis." 23 slip op. at 37. 24 It The state appellate court People v. Baldwin, No. A107665, However, the court held that the prosecutorial misconduct 25 claim was waived because defense counsel did not object. 26 concluded that counsel's failure to object was not ineffective 27 because the prosecutor's comment "may have been a reference to 28 defendant's statement in the recorded call about some 'snitching' 31 It also 1 and asking the third party to 'handle' it. 2 underscoring the point, it was within the range of reasonable 3 competence to elect instead simply to remind the jury in his own 4 argument that arguments of counsel are not evidence." 5 Respondent argues that the "star chamber" comment was isolated and 6 ambiguous and that counsel's decision not to object to it or to 7 request a limiting instruction was strategic. 8 9 misconduct and ineffective assistance of counsel. United States District Court For the Northern District of California d. Misrepresentation that Thigpin and Fudge Were Afraid 11 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Id. Nonetheless, these facts support the claims of prosecutorial 10 12 Rather than risk Petitioner contends that the prosecutor, in his closing argument, misstated the evidence relating to the credibility of defense witnesses Thigpin and Fudge, and defense counsel did not object. In his cross-examination of Thigpin and Fudge, the prosecutor repeatedly suggested that they were testifying for Petitioner out of fear for their lives. Both witnesses repeatedly denied this, RT 967-69 (Fudge) and 995-96, 1005-06 (Thigpin), although they agreed that someone who identified a murderer could be in danger. In his closing argument, the prosecutor stated, "Aaron Thigpin would not have made it home alive, he said, if he saw Wesley Tucker with the defendant on this day. Jermaine Fudge would not have made it home alive, if I [sic] saw someone like the defendant who did this killing." RT 1184. Defense counsel did not object to these statements. 27 28 32 1 The state appellate court concluded that the prosecutor's 2 statements fell on the side of permissible argument for reasonable 3 inferences from 4 Thigpin's testimony, in response to a hypothetical question, [] that he personally believed his life would be in danger if he identified a person responsible for a murder. . . . The prosecutor's use of the phrase "he said" logically referred to Thigpin's admission that he believed he would be killed if he identified a person responsible for the murder. 5 6 7 8 9 United States District Court For the Northern District of California 10 People v. Baldwin, No. A107665, slip op. at 19-20. Similarly, in regard to Fudge, the court found that the 11 injection of the pronoun "I" was a rhetorical device the prosecutor used to portray what Fudge might be thinking. The prosecutor was clearly suggesting to the jury that it could infer Fudge shared the same fear that Thigpin acknowledged, and that is why Fudge testified he saw a person firing shots but could not identify the shooter, except to say with certainty that the person was not defendant. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Id. at 20. Therefore, the state appellate court held that counsel was not ineffective for failing to object. Because the prosecutor had repeatedly tried and failed to get these witnesses to admit that they were fearful about testifying against Petitioner, he knew that he was misstating the witnesses' testimony. Therefore, his remarks amount to prosecutorial misconduct. Explaining his failure to object, defense counsel declares, "These statements were mere speculation on the part of the prosecution and I did not object to these misstatements of the record evidence. I generally rely on the jury to be critical of what both sides say about the evidence." 27 28 33 Berry Dec. at ¶ 19. 1 Respondent argues that counsel's statement shows that he made a 2 tactical decision not to object. 3 Because Petitioner's defense rested heavily upon the 4 credibility of these two witnesses and the prosecutor's statements 5 misrepresented what the witnesses said, counsel's decision not to 6 object supports the claim of ineffective assistance of counsel. 7 3. Character Attacks on Defendant and Defense Witnesses 8 a. Taped Conversations with Aldridge Petitioner argues that the prosecutor was allowed to 10 United States District Court For the Northern District of California 9 introduce his taped jailhouse conversations with Aldridge which 11 did not pertain to Zachery's murder, but tended to make Petitioner 12 look despicable in the eyes of the jury. 13 objected to the admission of the tapes, Petitioner contends that 14 defense counsel was ineffective for failing to ask for an 15 instruction limiting the jury's consideration of the evidence only 16 for its proper purpose, and to object to the prosecutor's 17 prejudicial use of this evidence. 18 Although defense counsel The trial court allowed the jury to hear the tape of one 19 entire telephone conversation and portions of the second 20 conversation between Petitioner and Aldridge. 21 consisted primarily of Petitioner insulting and verbally abusing 22 Aldridge, mostly in response to her accusations of his infidelity. 23 Petitioner repeatedly referred to Aldrich as a "bitch," a "stupid- 24 ass woman," a "ho" and a "nigger," and berated her for opening her 25 "motherfucking mouth." 26 pejorative statements in cross-examining Petitioner and Aldridge. 27 The prosecutor himself even referred to Aldridge as a bitch. 28 843. The conversations The prosecutor used Petitioner's RT Petitioner argues that these portions of the tape caused the 34 1 jury to think that he was revolting and a misogynist and, thus, 2 the type of person who could commit murder. 3 Petitioner contends the prosecutor committed misconduct when 4 cross-examining him about what he meant when he referred to the 5 "low-term 25" in his telephone call from jail to Aldridge. 6 Petitioner testified that he was warning that she could receive 7 the low term of three years for marijuana sales, not a term of 8 twenty-five years to life for murder. 9 "there's no crime in the Penal Code that you get low term of 25." The prosecutor replied that United States District Court For the Northern District of California 10 RT 1108. 11 marijuana charge, the prosecutor stated, "You know the truth of 12 this. 13 and you got credit for time served for anything else. 14 that, don’t you?" 15 objection and told the jury to disregard the prosecutor's 16 comments. After Petitioner insisted he was referring to a Don't deceive the jury. RT 1123-24. You know low term is two years, You know The court sustained the defense 17 The state court denied Petitioner's prosecutorial misconduct 18 claim based on this statement, finding that, although the form of 19 questioning was improper, Petitioner was not prejudiced because 20 the court sustained an objection and told the jury to disregard 21 the improper comments and the prosecutor later introduced evidence 22 that Petitioner had been sentenced to two years for a marijuana 23 sale. 24 The appellate court's conclusion that the questioning was 25 improper but not prejudicial was not unreasonable, but the 26 prosecutor's impropriety is consistent with his misconduct 27 throughout the trial, and contributes to a cumulative finding of 28 prejudice. 35 1 Prior to trial, the court held a hearing on defense counsel's 2 motion, under California Evidence Code section 352, to exclude the 3 taped phone conversations on the ground that their probative value 4 was outweighed by the probability that their admission would 5 create substantial danger of undue prejudice or of confusing the 6 issue. 7 second conversation, and only because they were repetitive. 8 66-69. 9 did not abuse its discretion by admitting the bulk of the taped RT 1-45. The court redacted only some statements in the RT The state appellate court concluded that the trial court United States District Court For the Northern District of California 10 conversations, noting that, throughout the conversations, 11 Petitioner made incriminating statements that were interspersed 12 and intertwined with his argument with Aldridge, so that most of 13 the tape had probative value. 14 Petitioner's words were not likely to shock or inflame the jury 15 because other witnesses used similar language and the trial took 16 place in an urban setting. 17 court had no sua sponte duty to give a limiting instruction, and 18 counsel never requested one. 19 defense counsel's failure to request a limiting instruction 20 constituted ineffective assistance. 21 The court also determined that The court explained that the trial The court did not address whether Trial counsel admits that he should have requested a limiting 22 instruction as to the purpose for which the jury could consider 23 the pejorative statements in the phone conversation, but did not 24 because he thought "that evidence was just a diversion from the 25 real facts of the case." 26 Berry Dec. at 9. More of the offensive irrelevant language could have been 27 redacted. 28 effect of the prosecutorial misconduct and of the evidence This evidence contributed to the unfairly prejudicial 36 1 received without limitation to its purpose. 2 failure to ask for a limiting instruction supports the claim of 3 ineffective assistance of counsel. 4 F.3d 769, 776 (9th Cir. 2001) rev'd on other grounds, 538 U.S. 202 5 (2003) (the only way to mitigate harm of drawing propensity 6 inferences from other acts evidence is to give limiting 7 instruction to jury). 8 Defense counsel's See Garceau v. Woodford, 275 b. Improper Cross-Examination 9 The relevant inquiry on a habeas claim of improper cross United States District Court For the Northern District of California 10 examination is that dictated by Darden, 477 U.S. at 181, i.e., 11 whether the prosecutor's behavior so infected the trial with 12 unfairness as to make the resulting conviction a denial of due 13 process. 14 considering whether the questioning deprived the defendant of a 15 fair trial, the witness' testimony should be viewed as a whole to 16 determine the impact of the improper questioning. 17 Ortiz v. Stewart, 149 F.3d 923, 934 (9th Cir. 1998). In Id. at 934-35. (1) Mocha Aldridge 18 The prosecutor established that Aldridge was aware in April 19 2003 that Petitioner had been charged with murder, but did not 20 immediately come forward to tell the police or the prosecutor that 21 she was with Petitioner on the day of the murder. 22 that she had given her calendar, in which she kept a record of her 23 daily activities, and a statement, to the defense investigator in 24 2003. 25 I didn't receive any knowledge of this until I got a letter" from 26 defense counsel shortly before the trial began. 27 28 He brought out The prosecutor then stated, "The record should reflect that The appellate court held that statements by attorneys are not evidence and defense counsel should have objected on this ground, 37 1 but did not. 2 did not constitute deficient representation because this issue was 3 not critical but was collateral to the prosecutor's proper line of 4 questioning regarding Aldridge's failure to disclose Petitioner's 5 alibi before the trial. 6 prosecutor's comment was improper and counsel should have 7 objected. 8 misconduct or ineffective assistance of counsel, they contribute 9 to such findings. The state court was correct that the While these errors alone do not amount to prosecutorial 10 United States District Court For the Northern District of California The court then held that counsel's failure to object (2) Deborah Baldwin 11 Petitioner asserts that, during the cross-examination of 12 Deborah Baldwin, the prosecutor made testimonial statements in the 13 form of argumentative questions that conveyed his personal belief 14 that she lied to him and intentionally concealed key facts from 15 him. 16 informing the authorities of Petitioner's alibi, the prosecutor 17 stated: "No, No. If my kid were locked up for murder, and he was 18 with me, I'd go to the police officer and say, 'Hey, my kid was 19 with me. 20 915-16. 21 Later the prosecutor stated to Deborah Baldwin, "You lied to me 22 when you said you rented the car." 23 overruled. 24 in his cross-examination of Deborah Baldwin until the court 25 admonished him not to testify. 26 When questioning Deborah Baldwin about her delay in He couldn't have done it.' Why didn't you do that?" RT The court sustained the defense objection to this remark. A defense objection was The prosecutor continued to refer to his own actions RT 926-27. The state appellate court acknowledged that the prosecutor 27 became argumentative and made assertions of fact instead of asking 28 questions, but concluded that the prosecutor's conduct did not 38 1 prejudice Petitioner because the court sustained all but one of 2 the defense objections and because the improper statements did not 3 inform the jury of facts that it did not already know. 4 also surmised that the jury would not have construed the 5 prosecutor's comments "as a statement of his personal belief that 6 Baldwin lied . . . [but] would have recognized that he was using 7 cross-examination aggressively to expose the inconsistencies in 8 her testimony, and to impeach her credibility." 9 Baldwin, No. A107665, slip op. at 14. The court People v. The state court was correct United States District Court For the Northern District of California 10 that the prosecutor's conduct was improper. 11 alone did not amount to prosecutorial misconduct, they support 12 such a finding. 13 14 While these comments 4. Prosecutor's Closing Argument If a prosecutor makes statements to the jury during closing 15 argument that he knows are false or has strong reason to doubt, 16 with respect to material facts on which the defendant's defense 17 relied, this is misconduct. 18 1069, 1078 (9th Cir. 2009). 19 20 United States v. Reyes, 577 F.3d a. "Crack an Alibi" Statement Petitioner objects to the prosecutor's assertion, in closing 21 argument, that it was not common to "crack an alibi like this," 22 because there was no evidence regarding how common it was to 23 "crack an alibi." 24 upon the prosecutor's own experience, that this was a strong case 25 for the prosecution. 26 prosecutor's statement did not concern a critical issue; the 27 critical issue was that the prosecutor had presented overwhelming 28 evidence undermining Petitioner's alibi. The remark amounted to telling the jury, based The state appellate court concluded that the 39 The state court also 1 concluded that it was not ineffective for defense counsel to fail 2 to object. 3 However, this statement by the prosecutor was improper and, 4 because it was directed at a critical part of the defense case, 5 supports a finding of prejudice. 6 counsel's failure to object supports the claim of ineffective 7 assistance of counsel. 8 For the same reason, defense b. Rental Car Records 9 Petitioner contends that the prosecutor committed misconduct United States District Court For the Northern District of California 10 during his rebuttal closing argument by stating, "You know, this 11 irritates me to no end. 12 Franklin rented. 13 from June 19th. 14 This was the prosecutor's response to defense counsel's closing 15 argument that the prosecutor's evidence failed to establish that 16 Franklin did not have a car rented from Enterprise as of July 1, 17 2001. 18 left by the Enterprise employee's testimony that he had not been 19 asked to check all the records for car rentals by Franklin, the 20 prosecutor assured the jury, from his own knowledge, that the 21 records had been checked for all possible Enterprise rentals to 22 Franklin and that none was rented to her on the day of the 23 homicide. 24 We checked every car that Cecilia We brought the one from July 2nd, and the one There was nothing rented in between." RT 1235. Petitioner argues that, to overcome the evidentiary gap The state court assumed this remark constituted prosecutorial 25 misconduct, but concluded that defense counsel did not provide 26 ineffective assistance by failing to object, because an objection 27 would have forced the prosecutor to restate his argument and focus 28 on defense counsel's failure to present records that Franklin did 40 1 have a rental car on the day of the homicide. 2 conclusion that it was improper for the prosecutor to argue facts 3 not in evidence to make up for a gap in his case against 4 Petitioner was correct. 5 supports a finding of deficient performance. 6 this remark in his rebuttal so, by failing to object, defense 7 counsel failed to point out to the jury the correct state of the 8 evidence. 9 fact that Franklin had a rental car to loan to Deborah Baldwin on The court's However, counsel's failure to object The prosecutor made A crucial element of the defense case rested on the United States District Court For the Northern District of California 10 the day of the homicide. 11 in his closing that the prosecutor failed to prove that Franklin 12 did not have a car on that day, his failure to object to the 13 prosecutor's erroneous statement, that he had checked all of 14 Franklin's car rental records, left the jury with the impression 15 that the prosecutor was in possession of evidence that she did not 16 have a car on that day. Because defense counsel had emphasized 17 c. Misstatement of the Law on Alibi 18 Petitioner contends that the prosecutor, in his closing 19 remarks, improperly asserted that the jurors were required to find 20 Petitioner guilty if they did not believe the alibi witnesses. 21 The prosecutor stated, "If you believe this alibi is a lie, is 22 untrue, you have to find him guilty," RT 1176-77; "If you believe 23 this alibi is false, you must find him guilty, and it is clearly 24 false," RT 1209; "And ladies and gentlemen of the jury, this all 25 boils down to these two witnesses and this false alibi. 26 innocent people don’t come up with these false alibis. 27 is enough--that alone is enough to convict him." 28 Defense counsel did not object to any of these remarks. 41 And That alone RT 1250. 1 Petitioner argues that these statements misstated the prosecutor's 2 burden of proving guilt beyond a reasonable doubt. 3 The state court concluded, "There was no reasonable 4 likelihood that the jury would have construed this, and similar 5 remarks throughout the prosecutor's closing, in the manner 6 defendant suggests. . . . Read as a whole, it is obvious that the 7 prosecutor was not purporting to state the law. 8 making a factual argument." 9 not constitute prosecutorial misconduct, the court also found that United States District Court For the Northern District of California 10 11 Rather, he was Because the court found that this did counsel was not ineffective for failing to object. The prosecutor's statement was incorrect. Because he said it 12 three times, it supports a claim of prosecutorial misconduct. 13 Defense counsel's failure to object supports a finding of 14 deficient performance. 15 d. Benefits to Tucker and Gaines 16 Petitioner contends that the prosecutor improperly informed 17 the jury that Tucker and Gaines would not, under Proposition 36, 18 have faced long prison sentences for possession of drugs if they 19 had not cooperated. 20 would be under Proposition 36, or that these witnesses would only 21 do "days or weeks" or "months in jail here and there," but not 22 years. 23 court concluded that, 24 25 26 27 28 There was no evidence of what their sentences RT 1182, 1195 (closing argument). The state appellate assuming arguendo that the description was inaccurate, it was not incompetent to fail to object. The prosecutor's argument merely minimized the degree of penal consequence these witnesses faced, but it did not undermine defense counsel's basic point that they both faced incarceration, and admitted that they gave information concerning the killing of Terrill Zachery in the hope of gaining their freedom. 42 1 2 People v. Baldwin, No. A107665, slip op. at 16. Thus, the state court did not rule on whether the prosecutor 3 committed misconduct. 4 with his misconduct throughout the trial and support a finding of 5 prejudice. 6 deficient performance. 7 The prosecutor's comments were consistent Counsel's failure to object supports a finding of Evidence of lenient treatment by the prosecutor in exchange 8 for testimony incriminating a defendant provides strong support 9 for the inference that the witness testified in order to curry United States District Court For the Northern District of California 10 favor with law enforcement.6 11 18 (1974) (important for jury to know of witness' vulnerable 12 status as a probationer and possible bias, based on an inference 13 of undue pressure from prosecution); Alford v. United States, 282 14 U.S. 687, 693 (1931) (that witness was in custody of federal 15 authorities could show bias based on promise or expectation of 16 immunity or coercive effect of detention); Burr v. Sullivan, 618 17 F.2d 583, 586 (9th Cir. 1980) (defense must be allowed to cross- 18 examine witnesses about juvenile offenses to show motivation for 19 cooperation with district attorney). Davis v. Alaska, 415 U.S. 308, 317- 20 Trial counsel states: 21 I am not sure if the prosecutor's arguments regarding the potential consequences for Tucker and Gaines were accurate. 22 23 6 24 25 26 27 28 In support of his traverse, Petitioner submits information about the charges against Tucker and Gaines. At the time of the trial, Tucker was on probation for a drug felony committed in Alameda County. On September 26, 2003, Tucker had been arrested in Ohio for a drug felony. On December 4, 2001, a warrant was issued for Gaines for a drug felony. On February 20, 2002, Gaines was placed on probation for a period of thirty-six months following conviction of the drug felony. 43 1 2 3 4 In any event, I did not object to it, nor did I try to contradict it in my own argument. In my view, it was a peripheral issue that did not have much to do with the credibility of those witnesses. Berry Dec. at ¶¶ 2 to 5. Given that the prosecutor's case depended on the credibility 5 of Tucker and of Gaines' original statement and given that their 6 potential sentences would have a strong impact on their 7 credibility in the eyes of the jury, the prosecutor's unproven 8 speculation about their potential sentences, and counsel's failure 9 to object to it, support findings of prosecutorial misconduct and United States District Court For the Northern District of California 10 11 12 deficient performance. 5. Representations of Facts Not In Evidence Petitioner argues that, during voir dire, to explain away the 13 primary weakness in his case, the prosecutor improperly stated as 14 a fact that most murder cases have no eyewitnesses. 15 prosecutor's improper suggestions, insinuations and assertions of 16 personal knowledge are apt to carry much weight and may cause such 17 prejudice as to rise to the level of a constitutional violation. 18 United States v. Williams, 504 U.S. 36, 60-61 (1992) (citing 19 Berger v. United States, 295 U.S. 78, 84-85 (1935)). A 20 The state appellate court found that the prosecutor made this 21 statement as a prelude to inquiring whether the prospective jurors 22 would have difficulty basing a decision on circumstantial evidence 23 in the absence of eyewitness testimony. 24 because this was an appropriate line of inquiry during voir dire, 25 it was not ineffective for defense counsel to fail to object. 26 state court's finding was not unreasonable. 27 28 The court found that, The Petitioner also argues that there was no evidence to support the prosecutor's assertion in his opening statement that unnamed 44 1 witnesses did not want to testify and that, when cases come to 2 court, family members from both sides report back on the street 3 what is happening. 4 that Gaines refused to testify at Petitioner's preliminary hearing 5 because he was told that fifteen to twenty members of Petitioner's 6 family were present in the courtroom, and that Tucker's family had 7 been told to warn him against testifying. 8 court found that there was evidence to support the prosecutor's 9 statement. The state court noted that there was evidence Therefore, the state This finding was not unreasonable. These facts do not United States District Court For the Northern District of California 10 support a finding of prosecutorial misconduct or ineffective 11 assistance of counsel. 12 13 6. Vouching Petitioner argues four instances when the prosecutor 14 improperly vouched for his witnesses, as follows: (1) in his 15 opening statement, the prosecutor described Sergeant Medeiros as 16 "one of Oakland's finest homicide detectives;" (2) in his closing 17 argument, the prosecutor said, "I met Wesley Tucker in Santa Rita 18 jail on May 10, 2004, and he essentially told me the same thing in 19 the presence of Inspector Pat Johnson;" (3) with respect to deals 20 made by the witnesses, the prosecutor stated, "Everything is open. 21 I have never in any way deceived you;" and (4) the prosecutor 22 stated, "I have tried to bring you all the witnesses that I can." 23 Defense counsel did not object to any of these statements. 24 Improper vouching for the credibility of a witness occurs 25 when the prosecutor places the prestige of the government behind 26 the witness or suggests that information not presented to the jury 27 supports the witness's testimony. 28 45 United States v. Young, 470 1 U.S. 1, 7 n.3, 11-12 (1985); United States v. Parker, 241 F.3d 2 1114, 1119-20 (9th Cir. 2001). 3 The state appellate court found that "none of these comments 4 were reasonably likely to have been understood as vouching, and it 5 therefore was not ineffective for counsel to fail to object." 6 statements about Sergeant Medeiros and Tucker constituted 7 vouching. 8 misconduct and counsel's failure to object to them supports a 9 finding of deficient performance. United States District Court For the Northern District of California 10 The These two statements support the claim of prosecutorial In sum, viewed as a whole, the prosecutor committed 11 misconduct and defense counsel's performance was deficient. 12 However, these findings will not afford relief unless Petitioner 13 was prejudiced by them. 14 II. 15 16 17 18 19 20 21 22 23 24 25 26 27 The Court now turns to this question. Prejudice From Prosecutorial Misconduct and Ineffective Assistance of Counsel A. Ineffective Assistance of Counsel To determine prejudice from ineffective assistance of counsel, the appropriate question is "'whether there is a reasonable probability that, absent [counsel's] errors, the factfinder would have had a reasonable doubt respecting guilt.'" Luna v. Cambra, 306 F.3d 954, 961 (9th Cir.) (quoting Strickland, 466 U.S. at 695), amended by 311 F.3d 928 (9th Cir. 2002). If the state's case is weak, there is a greater likelihood that the result of the trial would have been different, and vice versa. Luna, 306 F.3d at 966-67. "'[P]rejudice may result from the cumulative impact of multiple deficiencies.'" F.3d 1432, 1438 (9th Cir. 1995). 28 46 Harris v. Wood, 64 1 Because the state appellate court denied Petitioner's 2 ineffective assistance of counsel claims, finding that counsel's 3 performance was not deficient, it did not address the second prong 4 of the Strickland test, whether counsel's deficiencies resulted in 5 prejudice. 6 of the record to determine if the result was contrary to, or an 7 unreasonable application of, Supreme Court authority or an 8 unreasonable determination of the facts in light of the evidence. 9 Therefore, the Court undertakes an independent review Petitioner argues that this is a close case which amounted to United States District Court For the Northern District of California 10 a credibility contest between prosecution witness Tucker and 11 Gaines' original statement on the one hand, and the exculpatory 12 testimony of Thigpen, Fudge and Tapia on the other. 13 counters that the prosecutor's case was strong, with Tucker and 14 Gaines implicating Petitioner as the shooter and corroborating 15 each other, even though they were interviewed by the police on 16 separate occasions and had no significant connection to each 17 other. 18 Respondent The Court finds that the case was close and, therefore, there 19 was a reasonable probability that, but for the prosecutorial 20 misconduct and counsel's deficient performance by failing to 21 object, seek curative instructions and take action regarding 22 critical aspects of the defense, the result of the trial would 23 have been different. 24 Significantly, there was no physical evidence linking 25 Petitioner to the scene of the crime, no confession and, except 26 for the taped police interview of Gaines in which he relayed 27 hearsay statements from Hicks, no eyewitness identification of 28 Petitioner as the shooter. Gaines' statement was subject to doubt 47 1 because, at Petitioner's preliminary hearing, he recanted what he 2 told the police, saying that he told the police what they wanted 3 to hear. 4 the preliminary hearing or at the trial, he was never cross- 5 examined by defense counsel. 6 Furthermore, because Gaines never testified, either at Tucker, the most important prosecution witness, had something 7 to gain by testifying because he had a pending probation 8 violation. 9 Tucker was only facing weeks or months in jail, rather than years, The fact that the prosecutor improperly suggested United States District Court For the Northern District of California 10 minimized to the jury Tucker's incentive to testify for the 11 prosecution. 12 Respondent's primary argument, that the prosecutor had a 13 strong case because Tucker and Gaines' original statement 14 corroborated each other, is undermined by the fact that Gaines 15 recanted by testifying at Petitioner's preliminary hearing that, 16 in his taped statement to the police, he only told them what they 17 wanted to hear. 18 In addition to the testimony of Tucker and Gaines' statement, 19 the prosecutor presented evidence of the two telephone 20 conversations between Petitioner and Aldridge and the cell phone 21 calls to Aldridge's home telephone number from Tucker's phone on 22 the night of the murder. 23 taped telephone conversations depended largely on the prosecutor's 24 theory that Petitioner, who was arrested for possession of 25 marijuana and a parole violation, could not have known that he was 26 being investigated for a homicide, and thus would not have 27 repeatedly mentioned the homicide squad to Aldridge unless he had 28 committed the murder. The incriminating interpretation of the However, Officer Midyett, a police officer 48 1 who had been prominent in the search and arrest of Petitioner on 2 the marijuana and parole violation charges, was known in the 3 community for his work as a homicide officer. 4 testimony); 1034 (Petitioner's testimony). 5 commented that he thought of Officer Midyett as a homicide 6 officer. 7 Furthermore, the importance of the tapes turned on the 8 prosecutor's interpretation of ambiguous and cryptic words and 9 phrases such as "bizat," "low term 25" and "handle this shit." RT 845 (Aldridge's The trial judge also RT 32 (motion to suppress tape of jail telephone calls). United States District Court For the Northern District of California 10 The fact that a large sign over the jail telephone informed 11 inmates that their conversations were being recorded, RT 695, made 12 it unlikely that Petitioner would discuss inculpatory information 13 about a murder he had committed over the telephone. 14 Furthermore, the cell phone records that showed that two 15 short calls were made from Tucker's cell phone to Aldridge's home 16 on the night of the murder did not indicate who made the calls and 17 who received them. 18 Petitioner, who lived at Aldridge's home. 19 Petitioner allegedly made a call to Aldridge on Tucker's cell 20 phone, the woman who Tucker said brought Petitioner his gun was 21 another girlfriend, not Aldridge. 22 Tucker could have placed the calls to Furthermore, after On the defense side, although Thigpen and Fudge were 23 Petitioner's friends, Tapia was a neutral witness. 24 prosecutor's effort to impeach Thigpen and Fudge by showing that 25 they were testifying because they were afraid of Petitioner was 26 unsuccessful. 27 Fudge and Tapia, corroborated each other because they both 28 described him as thinner and shorter than Petitioner. The The separate descriptions of the actual killer, by 49 These 1 descriptions of the perpetrator are consistent with the security 2 guard's description of the man found in possession of the murder 3 weapon as tall and lanky; Petitioner weighed 230 pounds. 4 strong exculpatory evidence. 5 This is Petitioner presented an alibi with corroborating witnesses. 6 The prosecutor's attempt to show that Petitioner's alibi was 7 untrue based upon rental car records was incomplete. 8 9 The substance of trial counsel's deficient performance was directly relevant to the areas of weakness of the prosecutor's United States District Court For the Northern District of California 10 case. 11 counsel's failure to object to the prosecutor's closing argument 12 that appealed to the jury's passion and prejudice regarding crime 13 in Oakland, that Petitioner was running a "star chamber" by 14 threatening and intimidating witnesses, that implicated Petitioner 15 in the killing of Randy Hicks, that the jury must convict 16 Petitioner if it disbelieved his alibi defense, and that misstated 17 the evidence regarding the rental car records, the possible 18 sentences faced by prosecution witnesses Tucker and Gaines and the 19 testimony of Thigpen and Fudge. 20 The most egregious aspect of deficient performance was Given the closeness of the case and the cumulative impact of 21 the multiple errors by counsel, see Harris, 64 F.3d at 1438, there 22 is a reasonable probability that, absent counsel's deficient 23 performance, at least one member of the jury would have had a 24 reasonable doubt respecting Petitioner's guilt and he would not 25 have been convicted. 26 of ineffective assistance of counsel. Thus, Petitioner has established his claim 27 28 50 1 B. Prejudice From Prosecutorial Misconduct 2 The state appellate court held that many of Petitioner's 3 prosecutorial misconduct claims were procedurally defaulted. 4 Although the court addressed these claims, it did so in the 5 context of ruling on Petitioner's ineffective assistance of 6 counsel claims. 7 misconduct if the petitioner can show cause for the default and 8 actual prejudice as a result of the alleged violation of federal 9 law. A habeas court may review claims of prosecutorial Vansickel, 166 F.3d at 958. Because Petitioner's counsel United States District Court For the Northern District of California 10 was ineffective, he has shown cause for the procedural default of 11 his claims of prosecutorial misconduct. 12 488; Vansickel, 166 F.3d at 958. 13 prosecutorial misconduct, a petitioner must show that the 14 misconduct had a substantial and injurious effect or influence in 15 determining the jury's verdict, 16 that the trial was infected with unfairness, Darden, 477 U.S. at 17 181. 18 See Murray, 477 U.S. at To show prejudice as a result of Brecht, 507 U.S. at 637-38, and As discussed above, the case against Petitioner was close. 19 The ongoing pattern of prosecutorial misconduct related to 20 critical parts of the case. 21 these inflammatory comments during his closing argument and 22 rebuttal magnified their prejudicial effect because they were 23 fresh in the mind of the jurors. 24 case and the prejudicial effect of the prosecutor's misconduct, 25 the Court concludes that the misconduct had a substantial and 26 injurious effect on the jury's verdict and that the trial was 27 infected with unfairness. 28 found that the prosecutor's misconduct was not prejudicial, the That the prosecutor made many of Because of the closeness of the To the extent that the state court 51 1 ruling was based on an unreasonable determination of the facts in 2 light of the evidence presented in the state court proceeding. 3 Therefore, Petitioner has established his claim of prosecutorial 4 misconduct. 5 III. Failure to Investigate Jury Tampering 6 Petitioner argues that his rights to an impartial jury and 7 due process were violated because, after learning of possible jury 8 misconduct, the trial court failed to make an adequate inquiry. 9 This claim arises from an out-of-court conversation Juror United States District Court For the Northern District of California 10 Number 8 had with the victim's mother. 11 break in the trial, the victim's mother said to Juror Number 8, 12 "He killed my son, he was my son." 13 sorry." 14 four." 15 position to hear the exchange. 16 In the hallway, during a Juror Number 8 replied, "I'm The mother then said, "He was twenty-five, no twentyAn alternate juror was also in the hallway and in a The trial court held a hearing with the parties and Juror 17 Number 8. 18 would affect her decision as a juror and she responded, "[T]here 19 was nothing discussed about that . . . [N]o I don’t have a problem 20 with that, because no detail was discussed or anything like that." 21 Defense counsel did not request that Juror Number 8 be replaced 22 with an alternate, but he did move for a mistrial, which the court 23 denied. 24 about what he had overheard because "the content of the 25 communication was relatively innocuous." 26 request that the alternate juror be questioned and did not move 27 that the alternate be replaced. The court asked the juror whether the conversation The court decided not to question the alternate juror 28 52 Defense counsel did not 1 The Sixth Amendment guarantees to the criminally accused a 2 fair trial by a panel of impartial jurors. 3 Irvin v. Dowd, 366 U.S. 717, 722 (1961). 4 is unduly biased or prejudiced, the defendant is denied his 5 constitutional right to an impartial jury." 6 F.2d 520, 523-24 (9th Cir. 1990). 7 possibly prejudicial, between jurors and third persons, or 8 witnesses, or the officer in charge, are absolutely forbidden, and 9 invalidate the verdict, at least unless their harmlessness is made U.S. Const. amend. VI; "Even if only one juror Tinsley v. Borg, 895 "[P]rivate communications, United States District Court For the Northern District of California 10 to appear." 11 Mattox establishes the presumption that an unauthorized 12 communication with a juror is prejudicial. 13 California Men's Colony, 365 F.3d 691, 697 (9th Cir. 2004). 14 Mattox’s "presumption is not conclusive, but the burden rests 15 heavily on the Government to establish . . . that such contact 16 with the juror was harmless to the defendant." 17 States, 347 U.S. 227, 229 (1954). 18 with a juror is de minimis, the defendant must show that the 19 communication could have influenced the verdict before the burden 20 of proof shifts to the prosecution." 21 Mattox v. United States, 146 U.S. 140, 142 (1892). Caliendo v. Warden of Remmer v. United "[I]f an unauthorized contact Caliendo, 365 F.3d at 696. In determining whether an unauthorized communication raised a 22 risk of tainting the verdict, courts should consider factors such 23 as whether the unauthorized communication concerned the case, the 24 length and nature of the contact, the identity and role at trial 25 of the parties involved, evidence of actual impact on the juror, 26 and the possibility of eliminating prejudice through a limiting 27 instruction. 28 unauthorized conversation with multiple jurors for twenty minutes Id. at 697-98 (critical prosecution witness’s 53 1 was possibly prejudicial under Mattox, even if conversation did 2 not concern the trial). 3 Petitioner argues that the improper communication in this case was not de minimis, the trial court's hearing was extremely 5 brief and the court never asked Juror Number 8 "whether she 6 perceived the conversation as containing an implicit threat or 7 plea to decide the case based upon sympathy" for the victim and 8 the victim's mother. 9 erred by not undertaking any investigation of the impact of the 10 United States District Court For the Northern District of California 4 conversation on the alternate juror and, thus, in regard to the 11 alternate juror, the presumption of prejudice is unrebutted. Petitioner also argues that the trial court 12 The state appellate court denied this claim, determining 13 that the presumption of prejudice was dispelled with respect to Juror No. 8 because she did not describe or perceive the conversation as containing any implicit threat, or plea to decide the case based upon sympathy. Nor did she interpret the comment 'he killed my son' as an assertion that the victim's mother had information not presented to the jury that established defendant's guilt. She unequivocally stated her understanding that the conversation did not relate to her decision in the case, and expressed certainty that the conversation would not affect her ability to be impartial. 14 15 16 17 18 19 20 21 People v. Baldwin, No. A107665, slip op. at 42. The state appellate court also found that the presumption of 22 prejudice regarding the alternate juror was rebutted based upon 23 California law. 24 the victim's mother, judged objectively, did not convey the type 25 of information that was inherently and substantially likely to 26 have influenced the jurors. 27 no substantial likelihood that actual bias arose. The court determined that the comments made by The court determined that there was 28 54 1 The appellate court's determination was not unreasonable. 2 Not only was the content of the mother's remark non-prejudicial, 3 but the contact was brief and the trial court's inquiry of Juror 4 Number 8 was sufficient to dispel any presumption of prejudice. 5 Because the alternate juror was only a bystander, he would likely 6 be less influenced by the remarks than Juror Number 8, to whom the 7 remarks were directed. 8 not contrary to or an unreasonable application of established 9 federal law or an unreasonable determination of the facts in light United States District Court For the Northern District of California 10 The state court's denial of this claim was of the record evidence. 11 CONCLUSION 12 Based on the above, the Court’s confidence in the outcome of 13 Petitioner’s trial is undermined by the ineffective assistance of 14 counsel and prosecutorial misconduct. 15 petition for writ of habeas corpus is granted and his motion for 16 an evidentiary hearing is denied as moot. 17 is vacated and Respondent is ordered to release him from custody 18 within sixty (60) days of the date of this order unless the State 19 of California reinstitutes criminal proceedings against him. 20 Respondent appeals this decision, Petitioner's release or retrial 21 shall be stayed pending appeal. Therefore, Petitioner's Petitioner’s conviction If 22 23 IT IS SO ORDERED. 24 25 26 Dated: 8/29/2012 CLAUDIA WILKEN United States District Judge 27 28 55

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