Red v. Runnels, No. 5:2004cv04408 - Document 42 (N.D. Cal. 2009)
Court Description: ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS. The Clerk shall close this file. Signed by Judge James Ware on 11/19/2009. (ecg, COURT STAFF) (Filed on 11/23/2009)
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Red v. Runnels Doc. 42 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 11 For the Northern District of California United States District Court 10 GEORGE RED JR., Petitioner, 12 13 ) ) ) ) ) ) ) ) ) ) ) vs. 14 D. L. RUNNELS, Warden 15 Respondent. 16 No. C 04-04408 JW (PR) ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS 17 18 Petitioner, a California state prisoner currently incarcerated at California 19 Medical Facility, Vacaville, filed a pro se Second Amended Petition (“SAP”) for a 20 writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Court reviewed the SAP 21 and ordered Respondent to show cause why a writ of habeas corpus should not be 22 granted. Respondent has filed an answer, along with a supporting memorandum and 23 exhibits. Petitioner has filed a traverse. BACKGROUND 24 25 According to the SAP, Petitioner was convicted by a jury in Superior Court 26 for the State of California in and for the County of Santa Clara of three counts of 27 bank robbery and one count of reckless driving in willful and wanton disregard for 28 the safety of others while attempting to elude a pursuing peace officer. Petitioner Order Denying Petition for a Writ of Habeas Corpus P:\PRO-SE\SJ.JW\HC.04\Red04408_denyHC.wpd Dockets.Justia.com For the Northern District of California United States District Court 1 was sentenced to a term of ninety-five years to life in state prison. The California 2 Court of Appeal modified the judgment, striking two of the five strikes, and 3 otherwise affirmed. The Supreme Court of California denied a petition for review. 4 Petitioner filed a federal habeas petition on October 19, 2004. Upon request of 5 Petitioner, rather than dismiss his petition as “mixed,” the Court stayed this action to 6 allow Petitioner to exhaust his unexhausted claim. Thereafter, Petitioner filed an 7 unsuccessful habeas petition in the California Supreme Court. On January 14, 2008, 8 Petitioner returned to federal court and on April 30, 2008, the Court re-opened this 9 action. 10 The California Court of Appeal set forth the following summary of facts: 11 Between September 29, 2000 and October 16, 2000, [Petitioner] robbed three banks in Santa Clara County. The stolen cash included “bait” money. [FN 1.] The banks’ surveillance cameras photographed [Petitioner] during each robbery. The first robbery took place on September 29, 2000, at the Bank of America at 1510 The Alameda in San Jose. [Petitioner] entered the bank and showed a note demanding cash to Beverly Williamson, a customer service manager. According to Ms. Willamson the note stated, “this is a robbery . . . no dye pack, no alarms, hand over 100s, 50s, 20s” or “something to that effect.” Ms. Williamson testified that she was “upset” by the note and fearful for herself and others. [Petitioner] left the bank with approximately $2500, as well as the note. After [Petitioner] was arrested, Ms. Williamson positively identified [Petitioner] as the man who robbed her that day. This robbery formed the basis of count four. On October 10, 2000, [Petitioner] entered the Bank of the West at McKee and White streets in San Jose. He showed teller Omar Gonzalez a note. According to Mr. Gonzalez the note stated, “no bait, no alarm, . . . give me 50s, 20s, 100s.” He testified that he was “panicked at first,” was afraid, and only gave [Petitioner] the cash because he thought he was in danger. [Petitioner] left the bank with about $3000. He was videotaped by the bank’s surveillance camera. This robbery formed the basis of count three. On October 16, 2000, [Petitioner] entered the Wells Fargo Bank on San Felipe Street in San Jose. He showed teller Christopher Cook a note. According to Mr. Cook the note stated, “20s, 50s, 100s. No dye packs, no problems.” Mr. Cook testified that he only gave [Petitioner] the cash from his cash drawer because he was afraid. He believed that he statement “no problems” in the note meant “there would be problems if [he] didn’t give him the cash right away.” [Petitioner] left the bank with approximately $4000. This robbery formed the basis of count one. Jeff Enslen of the San Jose Police Department was driving his patrol car on the afternoon of October 16, 2000. [FN 2.] He heard over 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Order Denying Petition for a Writ of Habeas Corpus P:\PRO-SE\SJ.JW\HC.04\Red04408_denyHC.wpd 2 the police radio that there had been a bank robbery. He was told to go to the intersection of Tully and Capitol Expressway. Enslen reviewed his book of photographs of bank robbery suspects. As he was waiting to turn left onto Tully Road, he “saw a male driver parked waiting for the light.” The driver was wearing a blue coverall shirt, “which was one of the items mentioned in the be-on-the-lookout.” Enslen decided he wanted to “get beind that person and find out if they were the suspect.” Enslen pulled behind the car and activated his overhead flshing lights in order to commence a car stop. The driver began to pull over to the side of the road as though preparing to stop. Suddenly, he sped away into the traffic. Enslen activated his siren. As the car sped down the exit ramp on to Cunningham Avenue, it nearly collided with another police car that was assisting with the chase. The car turned into a dead-end street. At the end of the street the driver attempted to make a u-turn by driving over a lawn. He was blocked from so doing by Enslen. The driver was arrested. The vehicle was searched and officers from $4,780 in cash on the front seat of the car. The cash included the “bait” money that matched the Wells Fargo “bait” list. Enslen identified [Petitioner] as the driver of the car. At the scene of the stop, Mr. Cook made a positive identification of [Petitioner] as the man that had robbed the bank earlier that day. [Petitioner] admitted that he was the man who entered the three banks with a note that asked for money. He testified, however, that the note said only “100s, 50s and 20s.” It did not include language indicating that it was a robbery, or not to include dye packs, or demanding “no problems.” According to [Petitioner], knowing that the policy in banks was to hand over the money on demand, he realized he did not need to show any weapon or make overt threats to get money. [Petitioner] admitted that he tried to flee from the police, but did not see the other officer on Cunningham Avenue. Further, he did not believe he placed anyone in harm’s way while trying to escape. The sole contested issue at trial was whether the element of force or fear was established for purposes of the three robbery charges. 1 2 3 4 5 6 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 FN 1. The money had been photographed and contained an electronic tracking device. 19 20 FN 2. At this time he was a patrol officer, patrolling in a marked police car. At the time of [Petitioner’s] trial he was a robbery detective. 21 22 (Resp. Ex. 6 at 2-4.) 23 DISCUSSION 24 A. Standard of Review 25 This court may entertain a petition for a writ of habeas corpus “in behalf of a 26 person in custody pursuant to the judgment of a State court only on the ground that 27 he is in custody in violation of the Constitution or laws or treaties of the United 28 Order Denying Petition for a Writ of Habeas Corpus P:\PRO-SE\SJ.JW\HC.04\Red04408_denyHC.wpd 3 1 2 For the Northern District of California The writ may not be granted with respect to any claim that was adjudicated 3 on the merits in state court unless the state court’s adjudication of the claim: “(1) 4 resulted in a decision that was contrary to, or involved an unreasonable application 5 of, clearly established Federal law, as determined by the Supreme Court of the 6 United States; or (2) resulted in a decision that was based on an unreasonable 7 determination of the facts in light of the evidence presented in the State court 8 proceeding.” Id. § 2254(d). 9 United States District Court States.” 28 U.S.C. § 2254(a). “Under the ‘contrary to’ clause, a federal habeas court may grant the writ if 10 the state court arrives at a conclusion opposite to that reached by [the Supreme] 11 Court on a question of law or if the state court decides a case differently than [the] 12 Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 13 U.S. 362, 412-13 (2000). “Under the ‘reasonable application clause,’ a federal 14 habeas court may grant the writ if the state court identifies the correct governing 15 legal principle from [the] Court’s decisions but unreasonably applies that principle 16 to the facts of the prisoner’s case.” Id. at 413. “[A] federal habeas court may not 17 issue the writ simply because the court concludes in its independent judgment that 18 the relevant state-court decision applied clearly established federal law erroneously 19 or incorrectly. Rather, that application must also be unreasonable.” Id. at 411. A 20 federal habeas court making the “unreasonable application” inquiry should ask 21 whether the state court’s application of clearly established federal law was 22 “objectively unreasonable.” Id. at 409. 23 The only definitive source of clearly established federal law under 28 U.S.C. 24 § 2254(d) is in the holdings (as opposed to the dicta) of the Supreme Court as of the 25 time of the state court decision. Williams, 529 U.S. at 412; Clark v. Murphy, 331 26 F.3d 1062, 1069 (9th Cir. 2003). While circuit law may be “persuasive authority” 27 for purposes of determining whether a state court decision is an unreasonable 28 application of Supreme Court precedent, only the Supreme Court’s holdings are Order Denying Petition for a Writ of Habeas Corpus P:\PRO-SE\SJ.JW\HC.04\Red04408_denyHC.wpd 4 1 binding on the state courts and only those holdings need be “reasonably” applied. 2 Id. Even if the state court decision was either contrary to or an unreasonable 3 4 application of clearly established federal law, within the meaning of AEDPA, habeas 5 relief is still only warranted if the constitutional error at issue had a “‘substantial and 6 injurious effect or influence in determining the jury’s verdict.’” Penry v. Johnson, 7 532 U.S. 782, 796 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 8 (1993)). Lastly, a federal habeas court may grant the writ it if concludes that the state For the Northern District of California United States District Court 9 10 court’s adjudication of the claim “resulted in a decision that was based on an 11 unreasonable determination of the facts in light of the evidence presented in the 12 State court proceeding.” 28 U.S.C. § 2254(d)(2). The court must presume correct 13 any determination of a factual issue made by a state court unless the petitioner rebuts 14 the presumption of correctness by clear and convincing evidence. 28 U.S.C. 15 §2254(e)(1). The standard of review under the AEDPA is somewhat different where 16 the state court gives no reasoned explanation of its decision on a petitioner’s federal 17 claim and there is no reasoned lower court decision on the claim. When confronted 18 with such a decision, a federal court should conduct “an independent review of the 19 record” to determine whether the state court’s decision was an objectively 20 unreasonable application of clearly established federal law. Richter v. Hickman, 21 521 F.3d 1222, 1229 (9th Cir. 2008). 22 B. Timeliness 23 In his SAP, Petitioner raises two claims for federal habeas relief: (1) 24 ineffective assistance of counsel for (a) failing to challenge the photo line-up and 25 move to suppress eyewitness evidence, (b) advising him to testify at trial, (c) failing 26 to inform Petitioner of the sentence to which he would be exposed; (d) failing to 27 investigate a voluntary intoxication theory of defense, and (e) failing to challenge 28 the felony reckless driving charge; and (2) jury instruction error. Order Denying Petition for a Writ of Habeas Corpus P:\PRO-SE\SJ.JW\HC.04\Red04408_denyHC.wpd 5 1 2 Respondent argues that although Petitioner’s original petition was timely, only the 3 jury instruction claim was exhausted and Petitioner cannot avail himself of either 4 statutory tolling or the relation-back doctrine. While the Court agrees that statutory 5 tolling is unavailable to Petitioner, see Ferguson v. Palmateer, 321 F.3d 820, 823 6 (9th Cir. 2003), the Court disagrees that all of Petitioner’s ineffective assistance of 7 counsel claims do not “relate back” to his original petition. For the Northern District of California 8 United States District Court Respondent moves to dismiss Petitioner’s ineffective assistance claims. In Mayle v. Felix, 545 U.S. 644 (2005), the Supreme Court discussed the 9 application of the relation-back doctrine under Federal Rule of Civil Procedure 15. 10 As the Supreme Court held, relation back will only be available upon the “existence 11 of a common core of operative facts uniting the original and newly asserted claims.” 12 Mayle, 545 U.S. at 659 (internal quotation omitted). “An amended habeas petition . 13 . . does not relate back (and thereby escape AEDPA’s one-year time limit) when it 14 asserts a new ground for relief supported by facts that differ in both time and type 15 from those the original pleading set forth.” Id. at 649. 16 Here, in the original petition, Petitioner claimed a jury instruction error, 17 ineffective assistance of counsel for advising Petitioner to testify, and ineffective 18 assistance of counsel for failing to develop the evidence to pursue an voluntary 19 intoxication theory. After concluding that Petitioner established good cause for 20 failing to exhaust his ineffective assistance claims prior to filing his federal habeas 21 petition, the Court granted Petitioner a stay under Rhines v. Weber, 544 U.S. 269 22 (2005). When Petitioner returned to federal court, in his SAP, he raised the same 23 jury instruction error, the same ineffective assistance of counsel claims, and added a 24 few new ineffective assistance of counsel claims. 25 In this case, Petitioner has satisfied the dictates of Mayle for two of his 26 ineffective assistance of counsel claims: advising Petitioner to testify and failing to 27 develop the evidence. When Petitioner sought a stay and abeyance, he gave both 28 this Court and the state timely notice of the facts and legal theory he wanted to later Order Denying Petition for a Writ of Habeas Corpus P:\PRO-SE\SJ.JW\HC.04\Red04408_denyHC.wpd 6 For the Northern District of California United States District Court 1 include in his SAP. These operative facts were also included in his original petition. 2 As such, the two ineffective assistance of counsel claims in both the original and the 3 second amended petitions are “tied to a common core of operative facts.” Mayle, 4 545 U.S. at 659. Therefore, the ineffective assistance of counsel claims raised in 5 both his second amended petition and original petition “relate back” to the timely 6 filed original petition under Mayle and are not barred by AEDPA’s one-year statute 7 of limitations. Id. 8 The Court concludes that when a petitioner seeks a stay of proceedings under 9 Rhines to exhaust unexhausted claims already contained in a timely federal petition, 10 the relation back doctrine will not create a statute of limitation problem for the 11 petitioner since the exhausted claim will, by definition, be identical to the claim 12 already raised in the existing petition.1 Accordingly, those ineffective assistance of 13 counsel claims raised for the first time in Petitioner’s SAP, i.e., the failure to 14 disclose Petitioner’s sentencing exposure, the failure to challenge the photo line-up 15 and suppress eyewitness testimony, and the failure to challenge the felony reckless 16 driving charge, are untimely and do not relate back to the original petition. See Fed. 17 R. Civ. P. 15(c); Mayle, 545 U.S. at 659. However, Petitioner’s claims of 18 ineffective assistance of counsel for advising Petitioner to testify and ineffective 19 assistance of counsel for failing to investigate a voluntary intoxication theory are 20 timely and the Court will address them, as well as the jury instruction claim, on the 21 merits below. 22 23 24 25 26 27 28 1 In King v. Ryan, 564 F.3d 1133 (9th Cir.), cert. denied, No. 09-5100, 2009 WL 1980821 (U.S. Oct. 5, 2009), the Ninth Circuit discussed the stay-and-abeyance procedure and its limitations in light of Mayle. In comparing the three-step stay-and abeyance procedure outlined in Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), with the two-step stay and abeyance procedure outlined in Rhines, the Ninth Circuit commented, “the Rhines exception eliminates entirely any limitations issue with regard to the originally unexhausted claims, as the claims remain pending in federal court throughout.” King 564 F.3d at 1140. “[T]he Kelly procedure, unlike the Rhines procedure, does nothing to protect a petitioner’s unexhausted claims from untimeliness in the interim.” Id. at 1141. Order Denying Petition for a Writ of Habeas Corpus P:\PRO-SE\SJ.JW\HC.04\Red04408_denyHC.wpd 7 1 1. 3 Petitioner claims that he received ineffective assistance of counsel because Ineffective Assistance for Advising Petitioner to Testify 4 counsel incorrectly advised him to testify. Specifically, Petitioner argues that he 5 was put in an awkward position, having to admit to crimes that were not supported 6 by the evidence presented which contributed to the jury finding him guilty of 7 robberies. 9 For the Northern District of California Analysis 2 8 United States District Court C. A claim of ineffective assistance of counsel is cognizable as a claim of denial of the Sixth Amendment right to counsel, which guarantees not only assistance, but 10 effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). 11 In order to prevail on a Sixth Amendment ineffectiveness of counsel claim, 12 petitioner must establish two things. First, he must establish that counsel’s 13 performance was deficient, i.e., that it fell below an “objective standard of 14 reasonableness” under prevailing professional norms. Id. at 687-88. Second, he 15 must establish that he was prejudiced by counsel’s deficient performance, i.e., that 16 “there is a reasonable probability that, but for counsel’s unprofessional errors, the 17 result of the proceeding would have been different.” Id. at 694. A reasonable 18 probability is a probability sufficient to undermine confidence in the outcome. Id. 19 A court need not determine whether counsel’s performance was deficient before 20 examining the prejudice suffered by the defendant as the result of the alleged 21 deficiencies. See id. at 697. 22 Here, Petitioner’s theory of defense was that he did not impart force or fear 23 when taking the money from the banks.2 According to Petitioner, counsel advised 24 him to testify because he “thought it was a logical move to have Petitioner state his 25 2 26 27 28 To be convicted of robbery under California Penal Code § 211, the jury had to find: (1) person had possession of property of some value; (2) the property was taken from a person or from his or her immediate presence; (3) the property was taken against the will of that person; (4) the taking was accomplished either by force or fear; and (5) the property was taken with the specific intent to permanently deprive that person of the property. See CALJIC 9.40. Order Denying Petition for a Writ of Habeas Corpus P:\PRO-SE\SJ.JW\HC.04\Red04408_denyHC.wpd 8 1 2 For the Northern District of California The California Supreme Court denied this claim without comment. 3 Accordingly, the Court will conduct “an independent review of the record” to 4 determine whether the state court’s decision was an objectively unreasonable 5 application of clearly established federal law. Richter, 521 F.3d at 1229. 6 United States District Court actions to the court, in order to lay a defensive ground work.” It appears that counsel had Petitioner testify so that he could negate the 7 element of “force of fear” from the crimes of robbery. The theory of defense was 8 that the taking of money was not accomplished by force or fear and, therefore, 9 Petitioner was only guilty of theft rather than robbery. 10 At trial, Petitioner testified that he was in each bank on the day of each 11 robbery (RT 188) and that he was the person identified in the bank security cameras 12 at the person taking money from the banks (RT 188-89). Petitioner also admitted 13 that he took the money, knowing that the money was not his (RT 221-222); that he 14 wrote notes demanding money from the bank tellers, knowing that banks had a 15 policy of not asking questions when being robbed (RT 189-190, 192); and that he 16 took the money for the purpose of buying more drugs (RT 192). Petitioner testified 17 that he never intended to scare any of the tellers (RT 192-193), and he never used 18 force or threatening gestures (RT 193). The defense theory was to focus the jury on 19 the element of “force or fear,” by having Petitioner testify that he did not intend to 20 place anyone in fear, he did not carry a weapon, he did not act in an intimidating 21 way, and he did not do anything to purposely make the tellers feel fearful. (RT 192- 22 196, 260.) 23 Assuming with deciding that counsel was deficient, the Court concludes that 24 Petitioner has failed to show prejudice. Even without Petitioner’s testimony, the 25 jury would have convicted Petitioner of the robberies beyond a reasonable doubt. 26 Williamson and Cook both were certain in their identification of Petitioner as the 27 robber. (RT 50-51, 65-66, 98.) Petitioner was found just after the last robbery with 28 the bait money in his car and a black beanie, identified by one of the witnesses. (RT Order Denying Petition for a Writ of Habeas Corpus P:\PRO-SE\SJ.JW\HC.04\Red04408_denyHC.wpd 9 1 145, 159.) And, Petitioner used the same modus operandi in all three robberies: he 2 approached the tellers with a note; the language in all three notes was similar; 3 Petitioner did not speak to any of the tellers; nor did Petitioner brandish any weapon. 4 (RT 52-53, 69, 90, 98.) In addition, all three tellers testified that they were fearful 5 and handed over money because of that fear. (RT 52-53, 69, 91, 93.) Accordingly, 6 even without Petitioner’s testimony, the Court finds that there is not “a reasonable 7 probability that, but for counsel’s unprofessional errors, the result of the proceeding 8 would have been different.” Strickland, 466 U.S. at 694, For the Northern District of California United States District Court 9 Accordingly, the Court concludes that the state court’s decision rejecting this 10 claim was not an unreasonable application of clearly established federal law. 28 11 U.S.C. § 2254(d)(1). Petitioner is not entitled to habeas relief on this claim. 12 2. Ineffective Assistance for Failing to Investigate Voluntary Intoxication 13 Petitioner claims that he received ineffective assistance of counsel because 14 counsel failed to investigate a voluntary intoxication theory for the purpose of 15 showing that Petitioner did not possess the requisite specific intent to commit the 16 robberies. Specifically, Petitioner argues that counsel should have pursued this 17 argument, and should have provided evidence that Petitioner was “under the 18 influence” when he committed the crimes. 19 A defense attorney has a general duty to make reasonable investigations or to 20 make a reasonable decision that makes particular investigations unnecessary. See 21 Strickland, 466 U.S. at 691. Strickland directs that “‘a particular decision not to 22 investigate must be directly assessed for reasonableness in all the circumstances, 23 applying a heavy measure of deference to counsel’s judgments.’” Silva v. 24 Woodford, 279 F.3d 825, 836 (9th Cir. 2002) (quoting Strickland, 466 U.S. at 491). 25 Voluntary intoxication is not an affirmative defense, but in California, it may be 26 considered in deciding whether a defendant possessed the required specific intent. 27 See People v. Saille, 54 Cal. 3d 1103, 1119 (1991). 28 The California Supreme Court denied this claim without comment. Order Denying Petition for a Writ of Habeas Corpus P:\PRO-SE\SJ.JW\HC.04\Red04408_denyHC.wpd 10 1 Accordingly, the Court will conduct “an independent review of the record” to 2 determine whether the state court’s decision was an objectively unreasonable 3 application of clearly established federal law. Richter, 521 F.3d at 1229. For the Northern District of California United States District Court 4 Here again, Petitioner cannot demonstrate prejudice. If the state’s case is 5 weak, the potential prejudicial effect of counsel’s performance must be evaluated in 6 light of that fact. Johnson v. Baldwin, 114 F.3d 835, 838 (9th Cir. 1997). 7 Conversely, if the state’s case was strong, there is much less likelihood of a 8 reasonable probability that the result of the trial would have been different. See, 9 e.g., Greene v. Henry, 302 F.3d 1067, 1072-74 (9th Cir. 2002). In this case, the 10 prosecution’s case was particularly strong, taking into account positive 11 identifications from all three robberies, the same modus operandi, Petitioner getting 12 caught with bait money, and Petitioner’s testimony essentially explaining what his 13 thought process was when he was robbing the banks. 14 The specific intent required to commit robbery is the specific intent to 15 “permanently deprive” a person of property. Cal. Penal Code § 211. Contrary to 16 Petitioner’s assertion, the jury did receive evidence that he was “under the 17 influence” at the time he entered each bank (RT 187, 192). Even with that evidence, 18 the manner in which Petitioner approached each teller and deliberately handed them 19 a note demanding money would have belied any attempt at persuading the jury that 20 Petitioner did not specifically intend to take the money away from the bank. Cf. 21 Manta v. Chertoff, 518 F.3d 1134, 1142 (9th Cir. 2008) (noting that intent can be 22 inferred by conduct). Further, Petitioner testified that because he was “under the 23 influence,” he knew his decisions were irrational, but he “understood his actions.” 24 (RT 215-216.) 25 In addition, to the extent Petitioner argues that counsel was ineffective for 26 failing to investigate voluntary intoxication as it relates to his felony reckless driving 27 conviction, the Court concludes that Petitioner has not demonstrated any prejudicial 28 effect. The specific intent necessary for a conviction of felony reckless driving is Order Denying Petition for a Writ of Habeas Corpus P:\PRO-SE\SJ.JW\HC.04\Red04408_denyHC.wpd 11 1 the specific intent to evade a pursuing peace officer. Cal. Penal Code § 2800.2. 2 Petitioner testified that when he realized that the police was trying to pull him over, 3 he “didn’t want to stop” because he had “committed a crime . . . I wanted to get to 4 my connection, get out of there.” (RT 203.) 5 In short, Petitioner conceded that he possessed the requisite specific intent for 6 the robberies and felony reckless driving. Thus any failure to investigate a voluntary 7 intoxication theory did not prejudice Petitioner. Accordingly, the Court concludes 8 that the state court’s decision rejecting this claim was not an unreasonable 9 application of clearly established federal law. 28 U.S.C. § 2254(d)(1). Petitioner is For the Northern District of California United States District Court 10 not entitled to habeas relief on this claim. 11 3. Jury Instruction 12 Petitioner claims that the jury should have been instructed that it had to find 13 the robbery victims’ fear was objectively reasonable. Specifically, Petitioner 14 suggests that the jury instructions should have defined “fear” as having both a 15 subjective and objective standard to sustain the robbery convictions. Petitioner 16 implies that the jury instruction permitted the jury to convict him if it found that the 17 victims’ fear was unreasonable. 18 At trial, the court instructed the jury with California Jury Instruction 19 (“CALJIC”) No. 9.40, which described the elements of robbery. It then instructed 20 the jury on the definition of fear in CALJIC No. 9.41: 21 22 23 The element of fear in the crime of robbery may be either: (1) The fear of an unlawful injury to the person or property of the person robbed, or to any of [his] [her] relatives or family members; or (2) The fear of an immediate and unlawful injury to the person or property of anyone in the company of the person robbed at the time of the robbery. 24 To obtain federal collateral relief for errors in the jury charge, a petitioner 25 must show that the ailing instruction by itself so infected the entire trial that the 26 resulting conviction violates due process. See Estelle v. McGuire, 502 U.S. 62, 72 27 (1991). The instruction may not be judged in artificial isolation, but must be 28 Order Denying Petition for a Writ of Habeas Corpus P:\PRO-SE\SJ.JW\HC.04\Red04408_denyHC.wpd 12 1 considered in the context of the instructions as a whole and the trial record. See id. 2 In other words, the court must evaluate jury instructions in the context of the overall 3 charge to the jury as a component of the entire trial process. United States v. Frady, 4 456 U.S. 152, 169 (1982). For the Northern District of California United States District Court 5 Not every ambiguity or deficiency in a jury instruction will rise to the level of 6 a due process violation. Middleton v. McNeil, 541 U.S. 433, 437 (2004) (per 7 curiam). A determination that there is a reasonable likelihood that the jury has 8 applied the challenged instruction in a way that violates the Constitution establishes 9 only that an error has occurred. See Calderon v. Coleman, 525 U.S. 141, 146 10 (1998). If an error is found, the court also must determine that the error had a 11 substantial and injurious effect or influence in determining the jury’s verdict, see 12 Brecht v. Abrahamson, 507 U.S. 619, 637 (1993), before granting relief in habeas 13 proceedings. See Calderon, 525 U.S. at 146-47. 14 The state court rejected this claim on direct appeal, reiterating that California 15 case law has long determined that the “fear element of robbery has no technical 16 meaning that must be explained to the jury.” (Resp. Ex. 6 at 6.) The state court 17 relied on several state cases and concluded, “We fail to see how a jury can infer that 18 the victim of a robbery was “in fear of harm” or “was in fact afraid” if there is not a 19 “reasonableness” component to that fear.” (Id. at 8.) See People v. Cuevas, 89 Cal. 20 App. 4th 689, 698 (2001) (“Actual fear may be inferred from the circumstances, and 21 need not be testified to explicitly”). The state court went on to determine that even 22 if the court had given a modified instruction as Petitioner suggests now, there is no 23 reasonable likelihood that the result would have been different. (Id. at 9.) 24 Here, the given instructions sufficiently conveyed to the jury that a victim 25 must experience reasonable fear. See United States v. Tirouda, 394 F.3d 683, 689 26 (9th Cir. 2005) (no error resulting from failure to define “accomplice” in an 27 accomplice instruction because the term expresses a concept within a juror’s 28 ordinary experience). Further, each victim testified that they all felt fear or Order Denying Petition for a Writ of Habeas Corpus P:\PRO-SE\SJ.JW\HC.04\Red04408_denyHC.wpd 13 1 apprehension due to Petitioner’s size and note, which had a threatening component 2 to it although did not contain explicit threats. In addition, Petitioner even conceded 3 that he was relying on the potential fear of the bank tellers based on his height and 4 size to just hand over the money without question. (RT 194.) Altogether, the record 5 makes clear that there was not a reasonable likelihood that the jury applied the 6 instruction in a way that violated the Constitution, see Calderon, 525 U.S. at 146-47, 7 and even if it did, in light of the evidence, any error did not have substantial and 8 injurious effect or influence in determining the jury’s verdict, see Brecht, 507 U.S. at 9 637. For the Northern District of California United States District Court 10 Accordingly, the state court’s rejection of this claim was not contrary to, or 11 an unreasonable application of clearly established federal law, nor was it an 12 unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. 13 § 2254(d)(1), (2). Petitioner is not entitled to habeas relief on this claim. CONCLUSION 14 15 16 For the foregoing reasons, the petition for a writ of habeas corpus is DENIED. 17 18 DATED: November 19, 2009 JAMES WARE United States District Judge 19 20 21 22 23 24 25 26 27 28 Order Denying Petition for a Writ of Habeas Corpus P:\PRO-SE\SJ.JW\HC.04\Red04408_denyHC.wpd 14 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA GEORGE RED, JR. Case Number: CV04-04408 JW Petitioner, CERTIFICATE OF SERVICE v. D.L. RUNNELS, Warden, Respondent. / I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. 11/23/2009 That on , I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. George Red T-55342 California Medical Facility P.O. Box 2500 Vacaville, Ca 95696-2500 Dated: 11/23/2009 Richard W. Wieking, Clerk /s/ By: Elizabeth Garcia, Deputy Clerk
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